Thank you so much for giving me the opportunity to come here today. I very much appreciate it.
I'm Deborah Anker, clinical professor of law at Harvard Law School and the director of the Harvard immigration and refugee clinical program. I want to speak to you today about the safe third country agreement and comment as well on some aspects of the U.S. asylum system.
The safe third country agreement was entered into between Canada and the U.S. It went into effect on December 29, 2004. It was entered into effect in order to supposedly gain more control over the U.S.-Canada border. Under the safe third country agreement—I'll refer to it as the STCA—Canada and the United States recognize each other as safe third countries for refugee claimants, and each country is permitted to return to the other country individuals who have travelled through that country, with few exceptions.
I'm going to summarize a report that was issued a year ago, as well as give some updated information. The report was issued by our clinical program, the immigration and refugee clinical program at Harvard Law School, as well as the international human rights clinical program and the Harvard Law Student Advocates for Human Rights. )
The report, which is entitled Bordering on Failure: The U.S.-Canada Safe Third Country Agreement Fifteen Months After Implementation, was based on a series of fact-finding missions that we conducted to three ports of entry along the U.S.-Canada border, as well as telephone interviews, cases and petitions, and legal scholarship and commentary.
I served as one of the faculty advisers to that study, and I also went on one of the fact-finding missions.
The report provides information and preliminary analysis of the impact of the STCA. Although since the report has been issued there is additional information that is consistent with this report, there's still only limited official information available regarding implementation of the STCA.
The report concluded that 15 months after implementation, the STCA not only failed to accomplish its stated goal of securing the border, but indeed made the border less secure, endangering the lives of refugee claimants and threatening the security of the United States and Canada. I'll go into detail here of the four principal conclusions.
First, the safe third country agreement endangers refugee applicants by denying them access to fundamental protections. Statistics collected from non-governmental organizations along the U.S.-Canada border demonstrate that the STCA has caused a significant decline in the number of refugee claimants legally crossing from the United States to Canada, disproportionately affecting the Colombian refugee community. Although both governments claim to offer generous systems of refugee protection, several aspects of the U.S. asylum system violate international legal standards. For example, in the United States, we have a one-year filing deadline, so that an individual has to apply for asylum within one year of entering the United States or he or she is barred. If he or she is barred, he or she is only eligible for a form of protection called “withholding of removal”, requiring the applicant to meet a higher standard of proof.
Indeed, this is very present in my mind. Yesterday we filed an application for a stay and motion to reopen in a very compelling case of a Colombian refugee who had been denied asylum because of the one-year filing deadline and was told that he did not meet the higher standard on withholding of removal. He was picked up by immigration officials. He's on his way to be returned to Colombia. We're trying to stay that. He wanted to come to Canada to apply here at the border but was told that he would not be able to, which in fact is the case under the safe third country agreement.
There is no doubt in my mind that he is virtually dead on arrival, should he return to Colombia, because of very courageous political activities he was involved in, opposing the FARC and other guerrillas in that country.
Also, in the U.S., there's routine detention—he's detained—and in some instances inhumane treatment of detained asylum seekers.
After the STCA went into effect, the number of, for example, Colombian refugees who entered Canada from the United States declined by approximately 82%.
While the acceptance rate in Canada was 81% in 2003 and 2004 and 79% in 2005, the acceptance rate in the United States in fiscal year 2004 was 45% for those who applied affirmatively and 28% for those appearing before an immigration judge.
The safe third country agreement also makes the border more hazardous for refugee claimants by threatening the existence of NGOs along the U.S.-Canada border. Prior to STCA implementation, NGOs along the border worked jointly with immigration officers to move applicants through the inspection and application process. As the number of refugee claimants being processed and sheltered by NGOs has decreased since the STCA went into effect, directors of refugee shelters have started considering alternate functions for their shelters. If NGOs close their doors, the border will become increasingly dangerous for refugees, who will have fewer and fewer places to turn for information, food, and shelter.
The STCA also encourages individuals who would normally have entered Canada’s refugee determination system to illegally cross the border or remain without status in the United States. Refugee claimants who are stranded in the United States are frequently statutorily barred from applying for asylum, as I've explained, and even those who are eligible for asylum have strong incentives not to regularize their status. For example, asylum applicants in the United States cannot receive work authorization for a period of six months after they apply for asylum. They cannot receive benefits or government-sponsored legal representation while awaiting determination of their claim. The lack of legal representation is an extremely dire issue in the U.S. There are no federally funded moneys available for representation of asylum-seekers, and indeed federally funded legal service moneys have been prohibited to be distributed to any organizations that are involved in representation of asylum-seekers. There are very few organizations available for legal representation, and legal representation makes a huge difference in the success of claims.
Individuals do not have any status and do not have any rights while they're awaiting determination of their claims, which sometimes can be months, if not years. Often, individuals are wary of entering into what is at times a dysfunctional and arbitrary system. I'm an expert in U.S. refugee law. I've been doing it for 20 years. If you ask me some basic questions about where the law stands on some critical issues related to gender persecution, even political opinion, how to establish a causal connection, I would have a very difficult time giving you a clear answer because so much of the law is up in the air, so it's very hard to describe to refugee claimants themselves.
I'd say these problems have been particularly exacerbated in the last two years, when legislation has been passed that now allows denial where applicants make any kind of inconsistent statement and allows immigration judges to deny applicants on the basis of a demeanour assessment. This is obviously problematic, but also inconsistent with UNHCR standards, and it puts potentially a greater emphasis on applicants proving that the motive of their persecutor is to persecute them because of a protected ground. There have been exorbitant corroboration requirements placed on applicants that are very difficult, even for people who are represented to me, let alone people who are unrepresented and in detention.
I know I'm going over my time here, but I did want to really emphasize something to end my remarks.
For decades Canada has served as a model whose example raised the standards of refugee protection worldwide, and especially in the United States. In 1986 the people of Canada became the only nation to be awarded the Nansen medal, presented annually by the UN High Commissioner for Refugees to a person or group for outstanding service in supporting refugee causes.
During the 1980s—and I tested this, as someone who lived through that period and became a refugee scholar then—Canada served as an important safety valve for central American refugees, who, as U.S. policy-makers and courts later acknowledged, faced discrimination under the U.S. asylum system. Canada's example inspired major reforms in the U.S. system and even changes in U.S. policy towards central America, contributing to the end of civil wars in some countries of the region.
In 1993, Canada became the first nation to issue guidelines recognizing the eligibility of female refugees for status and the right of female refugees to fair and equal treatment. The publication of the Canadian guidelines prompted the U.S. to issue similar gender guidelines two years later in 1995. The world, especially the U.S., desperately needs Canadian leadership.
Now, despite the glaring disparities in burden-sharing between developed and developing countries—developing countries host 71% of the world's refugees—Canada has adopted the STCA and chosen to turn away one-third of the claimants who arrive at its border. Although beyond the scope of this particular talk, the implications of these kinds of agreements reach beyond the borders of the United States, as interdiction policies stretch to Mexico, to other parts of the Americas, and throughout the world.
The STCA is only one piece in a puzzle, where refugees are trapped in their countries of origin, unable to flee, and are denied fundamental rights. We are coming very close to the moment we came to in 1951, when the world ratified the refugee convention with a tremendous sense of guilt about what had happened in Germany regarding the Holocaust, involving so many people, because the countries of the world would not admit refugees. As a result, the world community came together to adopt the refugee convention to provide that protection.
These kinds of measures are bringing us back to ground zero in a sense. I think if we don't stop it—and we really need your leadership—history will tell and be harsh on us.
Thank you very much.