Canada judge rules sending asylum-seekers back to the US violates their rights

07/27/20 • -1 min

Global Nation Archives - The World from PRX

Jonathan, an asylum-seeker from Haiti, has a collection of bus tickets from his trip last fall from Florida to the US-Canada border. The last bus dropped him off in Plattsburgh, New York, a little over 20 miles from Canada. Then, he took a taxi to the border.

But he didn’t go to an official border crossing. Instead, he followed instructions from other asylum-seekers.

“My friend sent me every [piece of] information,” said Jonathan, who asked to use only his first name because his asylum case is pending.

That information included videos posted online of an informal crossing point north of Plattsburgh. The spot, a country road that reaches a dead end in a gravel patch at the border, has become so popular with asylum-seekers that police now wait, 24/7, on the Canadian side to detain new arrivals.

But like tens of thousands of other asylum-seekers trying to reach Canada from the US in the past four years, Jonathan took this route to avoid a bilateral deal between the two countries known as the Safe Third Country Agreement. Signed in the wake of 9/11, the deal allows both the US and Canada to turn back asylum-seekers who present themselves at official border crossings if they first passed through the other country. In practice, it has more frequently impacted asylum-seekers arriving in Canada after having lived in or transited through the United States.

But last week, a Canadian judge ruled the agreement violates asylum-seekers’ rights because of what happens after people are turned back to the US if they arrive at official border crossings. Detention conditions to which returned asylum-seekers may be subject in the US violates asylum-seekers’ protections under the Canadian Charter of Rights and Freedoms, the judge found.

Alex Neve, secretary general of Amnesty International Canada, which was a party to the legal challenge, explained that those who do arrive at the US border at official crossing points and are turned back are returned to US border agents.

“You may very well end up in detention for an extended period of time. In immigration detention centers, sometimes commingled with criminal convicts. That’s very commonplace.”

Alex Neve, Secretary General, Amnesty International Canada

“You may very well end up in detention for an extended period of time. In immigration detention centers, sometimes commingled with criminal convicts. That’s very commonplace,” Neve said.

In her ruling Wednesday, Canadian Federal Court Justice Ann Marie McDonald focused on the experience of plaintiff Nedira Mustefa, an asylum-seeker who is originally from Ethiopia.

After being turned back from Canada, Mustefa spent a month in a New York county jail, which included time in solitary confinement until she was released on bond. Unable to get halal food in jail, Mustefa lost 15 pounds.

McDonald wrote: “Although the US system has been subject to much debate and criticism, a comparison of the two systems is not the role of this Court, nor is it the role of this Court to pass judgment on the US asylum system.”

However, she continued: “Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the [Safe Third Country Agreement].”

The ruling leaves the agreement in place for the next six months to allow the government to respond. Amnesty International Canada and the Canadian Association of Refugee Lawyers have urged Prime Minister Justin Trudeau's government not to appeal.

Mayor of Plattsburgh, Colin Read, says that despite the notoriety of the back road where Jonathan crossed, some families still approach official border crossings because they either do not know of the agreement or think they fall under exempted categories.

The first family of asylum-seekers he encountered back in 2017 had tried to apply for asylum at the Champlain–St. Bernard de Lacolle border crossing, a half-hour drive north of Plattsburgh, New York.

According to Read, the father of the family had $2,000 in his pocket to begin what the family hoped was a new life in Canada. Turned back from Canada as ineligible to enter and apply for asylum, he was detained by US border officers who found the sum suspicious.

Eventually, Read said, “He’s ... transported to Buffalo, which is the main [immigration] detention center in our region, and there's a wife and a bunch of kids in hand with no place to go.”

<...

But he didn’t go to an official border crossing. Instead, he followed instructions from other asylum-seekers.

“My friend sent me every [piece of] information,” said Jonathan, who asked to use only his first name because his asylum case is pending.

“You may very well end up in detention for an extended period of time. In immigration detention centers, sometimes commingled with criminal convicts. That’s very commonplace.”

Alex Neve, Secretary General, Amnesty International Canada

“You may very well end up in detention for an extended period of time. In immigration detention centers, sometimes commingled with criminal convicts. That’s very commonplace,” Neve said.

In her ruling Wednesday, Canadian Federal Court Justice Ann Marie McDonald focused on the experience of plaintiff Nedira Mustefa, an asylum-seeker who is originally from Ethiopia.

However, she continued: “Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the [Safe Third Country Agreement].”

Eventually, Read said, “He’s ... transported to Buffalo, which is the main [immigration] detention center in our region, and there's a wife and a bunch of kids in hand with no place to go.”

<...

Previous Episode

The pandemic upended this Latino teen's senior year. Now it's upended his politics.

This story is part of "Every 30 Seconds," a collaborative public media reporting project tracing the young Latino electorate leading up to the 2020 presidential election and beyond.

The coronavirus pandemic turned Jacob Cuenca’s life upside down just before he graduated high school.

“Literally everything was fine, you know, I was going to school, worrying about my math test, and all of a sudden there's no school for, like, three months,” he said. “We had no prom night, no senior brunches.”

Cuenca, who is 18, now finds himself in a kind of purgatory in between high school and college, stuck at home in a town just south of Miami, one of the nation's epicenters for the coronavirus. He graduated from high school but has chosen to delay his freshman year at the University of Denver in Colorado for at least one semester to avoid some of the disruption brought on by the pandemic.

Politically, Cuenca finds himself in a kind of purgatory as well. He registered to vote for the first time in March as a Republican. He considered himself a reluctant supporter of Republican President Donald Trump.

But the pandemic has shaken up Cuenca’s politics, too. Trump’s handling of the pandemic has made him reconsider his support for the president. Instead, Cuenca has become a hesitant supporter of presumed Democratic nominee Joe Biden.

His journey offers a snapshot into the psyche of a first-time Latino voter in Florida, a must-win swing state.

“I think Joe Biden and Trump are both pretty bad people. But if I had to choose a lesser evil it would be Joe Biden.”

Jacob Cuenca, first-time voter

“I think Joe Biden and Trump are both pretty bad people,” Cuenca said. “But if I had to choose a lesser evil it would be Joe Biden.”

The problem with Biden is that he’s old, out of touch, and will say anything to get elected, Cuenca said. And it doesn’t help that Biden was one of the authors of a 1994 law that is broadly credited as being one of the primary reasons for mass incarceration in the US, he added.

Still, a Democrat in the White House could help pass new social programs in a time of financial crisis that has impacted his own family, Cuenca pointed out.

Family debates over politics

Cuenca’s mother also says she is underwhelmed with her options for the November election.

Nohemi Cuenca is a Mexican American who leans left and isn’t impressed with any of the candidates in the race. For her, it’s almost an existential moment for democracy.

“We should have good quality candidates that you can say, ‘Wow, we can get behind that person.’ I don’t feel like that for any of them, to tell you the truth,” she said. “Bernie Sanders, yeah, I felt it 100% that he should have been the person.”

“I think it’s a really sad time for us in the United States when it comes to politics.”

Nohemi Cuenca, mother of Jacob Cuenca

“Why they picked Joe Biden?” she asked, rhetorically. “I don’t know. [He's so] out of touch. But so is Trump. So I think it’s a really sad time for us in the United States when it comes to politics.”

Nohemi Cuenca said she is “up in arms” about who to vote for, because “neither of them, I feel, is any good.”

The Cuenca household is politically mixed. Family discussions can get passionate from all sides. But Nohemi Cuenca said talking politics with her children’s father, a Republican and staunch Trump supporter, is always informative and respectful.

“He’ll disagree with me or I’ll disagree and we have our opinions and we talk. But I listen to what he has to say. He listens to me as well,” she said. “Same with the kids. When they inform me of something that maybe I was wrong with, didn't know correctly, they will correct me. So — ‘OK, let me do my research and look about it.’ So, we all take it in stride.”

A welcome distraction

Talking politics can feel like a welcome — if inescapable — distraction from the coronavirus itself.

Jacob Cuenca has rarely left home for the last several months, besides taking bike rides around the neighborhood. He spends his time inside playing video games and sleeping i...

Next Episode

Farmworkers are getting coronavirus. They face retaliation for demanding safe conditions.

Ernestina Mejía knew people were getting sick all around her this spring. She heard co-workers coughing in the bathroom at work. Others whispered about colleagues looking feverish.

Mejía wasn’t surprised. She works at Primex Farms, a dried fruit and nut producer based in Wasco, California, about 130 miles north of Los Angeles. Mejía, who moved to the US from Mexico a decade ago, sorted pistachios indoors on an assembly line, working in close proximity to others. Primex offered them no masks, no gloves and no protection against the coronavirus, she said.

Then, in mid-June, Mejía fell ill.

“I started feeling shivers and a terrible cough that wouldn’t let me sleep,” she said in Spanish.

Mejía, along with her husband and youngest daughter, had contracted the virus. So did 99 of Mejia’s coworkers, or about a quarter of Primex’s 400-person workforce, according to a tally by the United Farm Workers, a farmworkers’ union. One of her Primex colleagues, Maria Hortencia Lopez, 57, died on July 13 from COVID-19, according to friends and the UFW. Meanwhile, Mejía said, Primex did not acknowledge that people were falling ill.

Horrified at the outbreak, Mejía and other Primex employees took part in a one-day strike in late June to protest what they viewed as their employer’s failure to protect them. They also demanded an investigation by the state’s attorney general.

Their situation highlights the tightrope farmworkers must walk to protect their health and jobs while avoiding retaliation from their employers. Within weeks, at least 40 Primex workers, many of whom were active in the strike, were terminated, former workers told The World. Others said they feared the same fate if they spoke up.

From the start of the pandemic, warnings were clear that farmworkers — deemed “essential” to the nation’s food supply and thus exempt from lockdown orders — would be at high risk for COVID-19. Across the US, an estimated 2.5 million farmworkers often work in cramped spaces, carpool to work and live in crowded homes. Many are immigrants and refugees. They’re part of an industry where safety and labor standards are notoriously weak, but many workers cannot leave their jobs because they’ll fall into poverty. The stakes are even higher for undocumented workers, whose legal status leaves them vulnerable to immigration enforcement.

Now, those early warnings are bearing out as outbreaks are reported at farms and food processing plants across the US. In July, dozens of farmworkers at a dorm-style housing facility in Southern California tested positive for the coronavirus. In southwest Florida, Doctors Without Borders has noted high rates of infections among farmworker communities and is providing them with COVID-19 testing and virtual medical consultations.

Employers’ lack of disclosure to employees about workplace infections is not unusual. Jesse Rojas, a business consultant Primex hired to speak to the media on its behalf, told The World the company has been following official safety guidelines and has been “very proactive in communicating with employees.”

In a statement to the local ABC television station, the company attempted to distance itself from the possibility that its workers were infected on-site.

“Primex cannot control the circumstances or monitor what employees are doing outside on their own time,” it said. “Primex is known as one of the cleanest plants in the industry.”

Mejía, along with several current and former Primex workers, also said that the farm did not provide masks for several months as the coronavirus surged across the country. When it did, cloth masks were provided for sale on-site for $8 each.

“That’s not something we can afford,” said Mejía, who earns $13 per hour. In the end, she said she purchased handmade masks f...