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When the United States and Canada agreed in March to close their border to asylum seekers at unauthorized entry points, Canadian officials said they had received assurances from their U.S. counterparts that the asylum seekers they turned back wouldn’t be deported.
Now at least one has been. At least eight others, including Nduwimana, are being held at a federal detention facility in Batavia, N.Y., many with final removal orders. One of them, a Ghanaian man, was pulled off a plane this month, avoiding deportation only after a lawyer obtained a temporary stay of removal.
Ottawa is stepping in — kind of.
Canadian Immigration Minister Marco Mendicino this month exempted five of those asylum seekers from the border restrictions, according to Kate Webster, their Toronto-based lawyer. Another application is pending. That means they will be allowed to enter Canada, if the United States releases them.
“While we absolutely welcome this decision and are very happy about it, we’re mindful that this is only a small piece of the puzzle and that the exemption on its own is not a complete solution,” Webster said.
Exemptions may be issued in “exceptional” situations when the foreign, immigration or public safety minister deems an individual’s presence in Canada to be of “national interest.” They were granted to foreign hockey players this year so the NHL could complete its season.
Advocates say their issuance to the asylum seekers amounts to an admission that the border restrictions aren’t being implemented the way Canada said they would be. They fear the known cases are just the tip of an iceberg — that others whom Canada turned back are in imminent danger of being deported by the United States to countries where they face harm, or already have.
Days after Webster received word of the exemptions for five of the six asylum seekers she knew about, her phone rang. Two more asylum seekers were on the line. They also had been directed back by Canada, detained by U.S. Customs and Immigration Enforcement and placed in removal proceedings.
“I have very serious concerns that there are many more in these circumstances and we just don’t know about them,” Webster said.
“It’s definitely time to revisit the policy,” Maureen Silcoff, president of the Canadian Association of Refugee Lawyers, said. “It’s not possible to turn a blind eye to this situation.”
Canadian officials declined to comment on the cases or the exemptions, citing privacy rules. A spokesman for Mendicino said the immigration ministry had “in a number of exceptional circumstances” granted such exemptions to refugee claimants to enter Canada from the United States.
“In each instance, these decisions were exercised in accordance with our domestic laws, international obligations towards refugees and protected persons,” spokesman Alex Cohen said, “and in strict compliance with public health and safety protocols at the border.”
During the pandemic, the Trump administration has used emergency powers to work toward its long-standing goal of limiting asylum, effectively sealing the United States off to those seeking refuge.
Advocates condemned the shift. They feared the United States would deport those turned back, putting both countries at risk of violating treaty commitments to non-refoulement — returning migrants to countries where they could face persecution.
Amid the outcry, Canadian officials said they were “urgently” discussing the issue with their U.S. counterparts.
“We are very much aware of the problem of refoulement,” Deputy Prime Minister Chrystia Freeland told reporters in March. “It was, and continues to be, important for Canada to have assurances that that would not happen to those returned to the United States.”
The State Department referred questions to the Department of Homeland Security, which did not respond to requests for comment. Canadian officials declined to provide a copy of the diplomatic note detailing the assurances because, they said, it represents “state-to-state communications.”
