Biden’s victory doesn’t solve asylum pact issue, experts say

Practice of detaining migrants predates Trump administration

Joe Biden has promised to dismantle U.S. President Donald Trump’s immigration policies upon taking office in January, but that doesn’t mean Canada should continue to uphold its asylum pact with America, refugee advocates say. “President-elect Biden has voiced concerns and pledged to reform some areas of immigration,” says Maureen Silcoff, immigration and refugee lawyer and the president of the Canadian Association of Refugee Lawyers.

“But ideas need to materialize, and human rights are too important to hinge on promises or hope.”

Though declared unconstitutional by the Federal Court, the future of the Canada-U.S. Safe Third Country Agreement (STCA) still hangs in the balanceafter an appeal court extended the initial Jan. 22 deadline for the federal government to void the treaty pending an appeal hearing in February.

The bilateral agreement, established in 2004, is designed to prevent “asylum shopping” in Canada and the U.S. by requiring migrants to claim asylum in the first safe country they land. It allows Canada to turn back migrants at the U.S. border.

In July, Federal Court Justice Ann Marie McDonald decided the STCA violated Canada’s Charter of Rights and Freedoms by exposing asylum seekers to inhumane conditions in migrant-detention facilities in the U.S. The decision effectively declared America unsafe for refugees and derided Canada as complicit in human-rights violations.

The Canadian government has appealed the ruling and will make its case in February. By that point, the U.S. will have a new president, one who, by all accounts, will be friendlier to asylum seekers. Biden’s win offers a source of hope for current and future immigrants to the U.S., after an unprecedented crackdown on immigration by Trump.

In four years, Trump has made more than 400 immigration-related policy changes, including his “zero tolerance” policy, which criminalized asylum seekers crossing the border illegally and systemically separated children from their parents. On his first day as president, Biden has vowed to create a task force to reunite the 545 migrant children who have been separated from their parents as a result of the policy. He has also pledged to end construction on the border wall, restore protections for Dreamers, expand avenues for legal immigration and remove Trump’s restrictions on asylum.

While Biden is expected to overhaul much of Trump’s immigration agenda, that doesn’t necessarily mean the end of human-rights abuses in detention facilities, observers say.

“This is a very long-term issue,” said Craig Damian Smith, senior research associate at the Canada Excellence Research Chair in Migration and Integration at Ryerson University, who is moderating a Munk School discussion on the topic Monday. “(Biden) can change a lot of things immediately, but he won’t fundamentally revise the whole U.S. immigration system, especially around detention.”

The treatment of asylum seekers at the southern border has worsened under Trump, but the practice of detaining migrants long predates his administration. The first modern detention facilities in the U.S. were established by Jimmy Carter in the 1970s to manage a growing number of migrants fleeing Haiti and Cuba and were cemented by the Reagan administration amid increasing refugee arrivals from Central America. The U.S. has been detaining migrants ever since and now has the largest migrant detention apparatus in the world.

The fundamental problem with the STCA is that it relies on “a high level of confidence that the (U.S.) system is working well,” and that means upholding the rights of asylum seekers, says Chris Alexander, former minister of immigration during the Stephen Harper government from 2013-15.

“The challenges of the U.S. immigration and refugee policy run wide and deep,” he said, and while there will be progress under the next administration, Biden alone is unlikely to fix that.

“The U.S. is no longer a reliable partner (on immigration) and hasn’t been for a while,” Silcoff added. “Its failure to meet human rights standards for refugees predates President Trump, but degenerated under his administration to the point that Canada must act now.”