Monday November 4, 2019
By Nicholas Keung
She knocked on Canada’s door and begged for protection. Instead, she was turned away, handcuffed and jailed — and no one even cared to ask her why she fled her native Burundi.
Then, in a cold cell at Clinton Correctional Facility in upstate New York, she was handed a flimsy prison jumpsuit and put in solitary confinement while waiting for the results of a mandatory TB test. Behind two panes of glass, she ate, slept and used the toilet in plain sight of the guards and anyone walking by. She was held for 51 days.
More than four years after the “horrific” detention experience she said still haunts her, this asylum seeker and others like her who were turned away by Canada at the Canada-U.S. border will finally have their day in court to explain why they feel the United States is not a safe country for refugees.
Starting Monday in Toronto, the Federal Court of Canada will hear a constitutional challenge to the Canada-U.S. Safe Third Country Agreement, under which both countries consider themselves a safe haven for refugees and agree to block would-be claimants from attempting to enter either country at official border crossings. Arguments will be heard over five days before Justice Ann Marie McDonald.
The Burundian woman, who cannot be named but spoke to the Toronto Star, will be one of the witnesses.
“I preferred death in my country than this treatment like a criminal in the U.S. If I were to die, I should die at home,” she said.
The bilateral pact, implemented in 2004, was originally touted by both Canadian and U.S. officials as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane, especially now under President Donald Trump.
Trump’s anti-migrant policies have spurred an influx of so-called irregular migrants skirting asylum restrictions by crossing outside of Canada’s official ports of entry, where restrictions apply. More than 50,000 asylum seekers have come here that way via the U.S. over the past two years. Once here, after passing initial medical and security screenings, refugees can work and access health care pending a decision on their asylum claims.
In 2007, three advocacy groups — the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches — took Ottawa to federal court and successfully had the U.S. declared unsafe for refugees, but the decision was later overturned on appeal, largely on the grounds that the groups failed to find a lead individual litigant who was directly impacted by the policy.
After Trump’s election in November 2016 with an anti-immigration agenda, Canadian and American non-governmental organizations and refugee lawyers renewed their effort to challenge the legality of the asylum restrictions.
In 2017, they connected with a Salvadoran woman in the U.S. who sought asylum after she was raped and threatened by the notorious Mara Salvatrucha gang in El Salvador, and agreed to be the lead litigant.
The other litigants include a Syrian family of four and a young Ethiopian woman, all of whom were denied access to asylum in Canada. The three Canadian rights groups also enlisted nine other witnesses, including the Burundian woman, to provide evidence in support of the litigants’ arguments.
“This litigation is significant because this is a way for us to collectively take a position on the human rights abuses and violations against refugees and migrants in North America,” said Janet Dench of the Canadian Council for Refugees.
“Canadians are horrified by what’s been happening in the U.S., with (migrant) children separated from their families, refugees turned away at the Mexico border, the Muslim travel ban and all these measures in the U.S. The litigation is a way of standing up against these policies we don’t and can’t approve of.”
The litigants are expected to present evidence of human rights violations and Canadian Charter breaches in U.S. detention and asylum practices, and highlight the impact of the Safe Third Country Agreement on the most vulnerable refugees fleeing gender-based persecution and gang violence, who are singled out by the Trump administration to be excluded from the U.S. refugee definition.
“Refugee claimants that Canada turns away at our borders are exposed to grave risks of detention and mistreatment in the U.S.,” the litigants claim in their court submissions. “Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection.”
In response to the claim, the Canadian government said the Canada-U.S. agreement is no different from similar deals in other refugee-receiving countries in response to rising global migration and forced displacement. Ottawa conducts regular reviews of the pact in order to ensure fair access to asylum, it said in a written response to the litigants’ claims.
“Claimants are returned to a highly developed asylum system that grants protection to large numbers of persons every year, and is subject to both administrative and judicial checks and balances,” it argued. “The U.S.A. complied with its international refugee protection and human rights obligations, notwithstanding debate both in the U.S.A. and internationally with respect to certain aspects of American policies and practices.”
However, the Burundian witness, who is only identified as “Morgan” because her identity is protected by the court, told the Star in an interview her experience in the U.S. tells a different story.
“With their accents, and English not being my first language, I had tremendous difficulty understanding them. They were treating me like I was trying to commit a crime,” recalled Morgan, 28, who said she had been threatened by government militia in Burundi after she and the civilian group she belonged to reported voter registration fraud in the 2015 election. Her cousin, also a member of the group, was shot and killed, she said.
“(American officials) were accusing me of fraud because my visa was for students. But I never intended to lie. All I wanted to do was leave a country where I could die any time,” added Morgan, who said getting a student visa was the only way she could get to the U.S. as a pathway to Canada.
Morgan, who has a degree in business administration back home, said she wanted to flee to French-speaking Canada, but since Ottawa does not have a visa post in Burundi she went to the U.S. consulate instead. She arrived in Pittsburgh in May 2015, before taking an overnight bus to Plattsburgh, N.Y., and from there to the official Canadian border post at Lacolle, Que.
She said she did not know about the asylum restrictions and was denied entry to Canada and detained in the U.S.
In addition to the lack of privacy in detention, Morgan said U.S. officials were “aggressive and rude” and did not help her fill out forms. She said with the one call she was allowed from jail she contacted a friend of a friend in the U.S., who found her a lawyer.
After 51 days behind bars, including 10 days in solitary confinement, she was released and had to couch-surf at the homes of people she barely knew while waiting for an asylum hearing to be scheduled. She said she was unable to support herself because immigration officials held her ID and she couldn’t get a work permit.
More than a year later, Trump won the U.S. presidential election, leaving Morgan to wonder if she would ever get asylum south of the border. When she learned people were bypassing the asylum restrictions at Canadian border crossings, she followed in the footsteps of those “irregular migrants” by crossing at Roxham Rd. in Quebec in August 2017.
However, she is still deemed inadmissible and ineligible to seek asylum in Canada because she had already been denied entry once — in 2015. Meanwhile, Canada cannot deport her to Burundi because of the current humanitarian crisis there.
“I am a victim who needs protection. It doesn’t make sense to call the U.S. a safe country,” she said. “I see how bad the consequences of this agreement are. I still can’t apply for refugee status in Canada because of this. This has to stop.”