Justice, justice thou shall pursue

Orwell's Big Brother: inspiration for U.S. asylum law?

Above: Orwell’s Big Brother. The inspiration for U.S. asylum law?

Last week Canadian federal judge Michael Phelan struck down Canada’s so-called Safe Third Country Agreement with the United States. The 2004 agreement allowed Canada to turn away asylum-seekers who arrived at the Canadian border on foot, on the understanding that they should make an asylum claim in the U.S. instead (one of the deal’s quirks was that it did not apply to asylum-seekers who arrived in Canada by air). After the Montreal Gazette editorialized against the decision and called for it to be appealed, refugee advocates Janet Dench and Rick Goldman published a thoughtful response, pointing out one of the most well-documented problems with the American asylum system. Under U.S. law, people who are forced by terrorist groups to hand over money are considered terrorists themselves, and so not eligible for asylum. As Dench and Goldman write:

a person who is forced under threat of physical harm to cook for or to temporarily house members of an armed militia, such as Colombia’s FARC or Sri Lanka’s Tamil Tigers, is barred from refugee protection in the United States for having provided “material support” to terrorists. As the court notes this “turns child soldiers, those forced (often at gunpoint) to support terrorist groups, and those coerced to pay revolutionary taxes, into terrorists in the U.S. system and subject to refoulement (return to persecution).” In Canada, they could be accepted as refugees.

When I did a radio documentary on the rights of refugees last year, I interviewed a Columbian man who had been extorted by FARC and fled to the U.S., only to be told by an immigration judge that this made him a terrorist, after which he finally obtained refugee status in Canada (prior to the deal coming into effect). There is something Orwellian about the way the U.S. classifies foreign victims of terrorism as terrorists themselves, and it is good to see Canada’s participation in such a process called into question.

Something surprising about the ruling is that it downplays what a lottery the U.S. asylum system is, even for non-Columbians. People who make asylum claims in the U.S. do not have a right to legal aid, and so often have to depend on lawyers willing to work for free. As a result many people seeking asylum wind up going through hearings with no legal representation at all. According to Harvard Law professor Deborah Anker, U.S. asylum-seekers with lawyers are four to six times more likely to succeed than those without.

Justice Phelan disregards this consideration on the grounds that only six Canadian provinces provide legal aid to people seeking asylum, and so the two systems are not that different in this respect. No doubt he’s right from a strictly legal point of view. But as the judge himself notes, most of the people who make asylum claims in Canada do so in a province where they have access to legal aid, which reduces the likelihood that they will be rejected simply because they have no one to represent them. This seems an important practical difference between the two programs, whether or not it arises out of the letter of the law. For this reason, I hope the government ignores the Gazette‘s advice and does not try to bring the agreement back.

Unfortunately, the Gazette is not the only outlet calling for an appeal. The Globe ran an editorial (now behind a pay wall) objecting to the decision on the following grounds:

Experts predict that if the judge’s ruling stands, the Canadian government will have to process thousands, perhaps more than 10,000, additional refugee claimants each year. Imagine the extra burden that would impose on an already strained refugee system, potentially siphoning off resources that would be better spent on bringing to Canada government-sponsored refugees who have been designated by the UNHCR—people who having been living in camps for years—than on coping with a major influx of asylum shoppers who come knocking on Canada’s door.

The idea that diverting resources away from Canada’s in-land asylum system will help refugees in overseas camps is unlikely. The governments of developing countries with large camp populations often take their cues on how to treat refugees from the industrialized world. As refugee analyst Arafat Jamal has pointed out, “Nations that absorb the most refugees in Africa will often cite the EU or U.S. tightening their policies as a rationale for them to tighten their own policies.” To take but one example, after the U.S. Supreme Court brought down a negative decision regarding the right to asylum in 1994, both Tanzania and Thailand used it as an excuse to go even further, and brought in even harsher policies of their own. If Canada wants to help overseas refugees, the way to do so is not to exacerbate this trend, but to serve as a model of first asylum, a role the United States and the European Union no longer perform. Justice Phelam’s decision is a breakthrough in that regard. Even if he is eventually over-ruled, he deserves our thanks and admiration.

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