A Partnership for Protection
Year One Review

November 2006

Footnotes

  1. UNHCR Safe Third Country Agreement Monitoring Report, 29 December 2004 – 28 December 2005.
  2. In its “Note on International Protection,” dated September 13, 2001, the UNHCR observed that “serious apprehensions about ‘uncontrolled migration’ in an era of globalization are increasingly part of the environment in which refugee protection has to be realized. Trafficking and smuggling of people, abuse of asylum procedures and difficulties in dealing with unsuccessful asylum claimants are additional, compounding factors.” UN General Assembly A/AC.96/951, 13 September 2001, p. 4.
  3. Ibid. The UNHCR observed in its 2001 “Note on International Protection” that “The various costs of hosting often large numbers of asylum seekers can be onerous. They include the economic burden of offering asylum, especially when set against competing national priorities for limited resources. They also include security concerns, inter-state tensions, irregular migration, social and political unrest and environmental damage.”
  4. In December 2001, U.S. Homeland Security Advisor Tom Ridge and Canadian Minister of Foreign Affairs John Manley signed the “Smart Border Declaration” and associated 32‑point action plan to enhance the security of our shared border while facilitating the legitimate flow of people and goods. Negotiation of a Safe Third Country Agreement is action item 5.
  5. The Security and Prosperity Partnership of North America was launched in March of 2005 as a trilateral effort to increase security and enhance prosperity among the United States, Canada and Mexico through greater cooperation and information sharing.
  6. UNHCR Monitoring Plan for the Canada- U.S. Safe Third Country Agreement.
  7. From the preamble of the Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries.
  8. UNHCR Monitoring Report: Canada-United States “Safe Third Country” Agreement, 29 December 2004 – 28 December 2005.
  9. The CBSA is responsible for determining whether or not the person is eligible to have a claim for refugee protection referred to the Immigration and Refugee Board (IRB). The IRB is responsible for rendering a final decision on the claim itself.
  10. A “family member,” in respect of a claimant, means their spouse or common-law partner, their legal guardian, and any of the following persons, namely, their child, father, mother, brother, sister, grandfather, grandmother, grandchild, uncle, aunt, nephew or niece.
  11. An “unaccompanied minor” means an unmarried refugee status claimant who has not yet reached his or her eighteenth birthday and does not have a parent or legal guardian in either Canada or the United States.
  12. Countries whose nationals do not require a visa to enter Canada include Antigua and Barbuda, Bahamas, Barbados, British overseas territory citizen, Botswana, Cyprus, Greece, Malta, Mexico, Namibia, Papua New Guinea, Republic of South Korea, St. Kitts and Nevis, St. Lucia, St. Vincent, Solomon Islands, Swaziland and Western Samoa.
  13. The claimant may still be found ineligible to apply for refugee protection in Canada despite the Agreement if the claimant has been determined to be inadmissible on the grounds of security, violating human or international rights, serious criminality or organized criminality under section 101(1)(f) of IRPA.
  14. IRPA provides the Minister of Public Safety and Emergency Preparedness with the legal authority to temporarily suspend or reinstate removals according to changes in country conditions. Under the Regulations, the Minister may impose a stay on removal orders with respect to a country or a place if the circumstances in that country or place pose a generalized risk to the entire civilian population. The suspension is lifted and removals are reinstated when the situation in the country improves. The temporary suspension of removal (TSR) does not apply to individuals who have a history of crime, pose a danger to Canadian society, or have been convicted of war crimes or crimes against humanity. The stay of removal does not apply to persons listed under 230(3)(a) to (f) of the IRPR, which includes those found to be inadmissible on the grounds of security, violating human or international rights, serious criminality or organized criminality.
  15. Under IRPA, the grounds for detention decisions include: the claimant is a danger to the public, the claimant is a “flight risk” who will not appear for a hearing or other immigration proceeding, or the claimant has not established his or her identity.
  16. Publication available on the UNHCR website: http://www.unhcr.org/cgi-in/texis/vtx/home?id=search.
  17. Source: Field Operations Support System (FOSS), January 6, 2006. Calendar year statistics are used for consistency with the data from previous years.
  18. Statistics include transitional cases processed under the old regime. In order to deal with pressures at the Canada-U.S. border during the pre-implementation period, some refugee claimants who approached the border were directed back to the U.S. temporarily and scheduled to return after December 29, 2004. Other Canada-bound refugee claimants waiting in Buffalo, N.Y., were issued TRPs allowing them to arrive at the Canadian border at Fort Erie, Ontario, after implementation of the Agreement and to be processed under the old rules. All transitional cases were processed by mid-March 2005.
  19. The figure includes claims processed at Fort Erie, Niagara Falls Rainbow Bridge and Queenston-Lewiston Bridge.
  20. The figure includes claims processed at Windsor International Tunnel and Windsor Ambassador Bridge.
  21. Subsection 230(1) of the Regulations.
  22. The 373 refugee claims were transitional cases. For further details, see footnote 13.
  23. Statistics provided by USCIS.
  24. INA § 208(a)(1).
  25. See DHS and U.S. DOJ rules at 69 Fed. Reg. 10620-10633 (Monday, March 8, 2004).
  26. 26. See DHS and DOJ rules at 69 Fed. Reg. 69480-69498 (November 29, 2004).
  27. Asylum Officers who conduct TSIs also receive additional training from their respective field offices. Furthermore, HQASM is available for any additional guidance for issues that may arise during a TSI. All TSI determinations are reviewed by HQASM.
  28. Section 235(b) of the INA, 8 U.S.C. § 1225(b), provides that any alien arriving at a designated POE or present in the United States without being admitted or paroled, who is inadmissible under INA section 212(a)(6)(C) or INA section 212(a)(7), may be subject to expedited removal.
  29. “An alien will be found to have a credible fear of persecution if there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, the alien can establish eligibility for asylum under section 208 of the Act, 8 C.F.R. § 208.30(e)(2). “An alien will be found to have a credible fear of torture if the alien shows that there is a significant possibility that he or she is eligible for withholding of removal or deferral of removal under the Convention against Torture.” 8 C.F.R. § 208.30(e)(3).
  30. “ U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country. If you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance. You will have the opportunity to speak privately and confidentially to another officer about your fear or concern. That officer will determine if you should remain in the United States and not be removed because of that fear.” Form I-867A.
  31. “Why did you leave your home country or country of last residence?" “Do you have any fear or concern about being returned to your home country or being removed from the United States?” “Would you be harmed if you are returned to your home country or country of last residence?” ”Do you have any questions or is there anything else you would like to add?” Form I-867B.
  32. CBP notifies the Asylum Office that has jurisdiction over the POE so that a TSI and a subsequent Credible Fear Interview, if necessary, may be scheduled.
  33. Applicants applying for admission under the Visa Waiver Program are not subject to expedited removal, but are referred to an Asylum Officer for a TSI using the same notice.
  34. See 8 C.F.R. § 208.30(e)(6).
  35. Draft Credible Fear Procedures Manual: (J) Safe Third-Country Cases (2)(a). Amendment to section IV.
  36. See Asylum Officer Basic Training Course Safe Third Lesson Plan at 6-7 (November 14, 2005). Also see Interviewing Part I: Overview of Nonadversarial Asylum Interview, updated January 9, 2006.
  37. Draft Credible Fear Procedures Manual: (J) Safe Third-Country Cases (10). Amendment to section IV (December 2004).
  38. See 8 C.F.R. § 208.30(e)(6)(i).
  39. See 8 C.F.R. § 208.30(e)(6)(i), 1003.42(h).
  40. See 8 C.F.R. § 1208.4(a)(6), 1240.11(g).
  41. In June 2005, CBP amended its policy regarding Cubans seeking asylum at land border POE s to provide that such individuals will be placed in INA § 240 proceedings rather than the expedited removal process. Other persons who are not subject to the expedited removal include persons for whom additional charges are lodged, such as charges relating to alien smuggling, drug trafficking, or other serious violations.
  42. ICE Memorandum, Detention and Deportation Officers’ Field Manual (DDFM) Updates. (January 26, 2006)
  43. Pursuant to the Statement of Principles, both Canada and the U.S. endeavour to return an individual within 90 days “after the original refugee status claim is made.” The Statement of Principles is a non-binding declaration of the Parties’ intentions under the Agreement.
  44. All individuals have a right to seek protection from return to a country of persecution or torture, prior to entry of a removal order. As such, those with removal orders necessarily already had access to the U.S. protection regime. There are also mechanisms for requesting a motion to reopen to seek protection based on changed conditions.
  45. Data received from APSS. Asylum claims from individuals arriving at a Canada and U.S. land border port of entry during fiscal years 2000 to 2004 were as follows: 2000 (72), 2001 (68), 2002 (64), 2003 (32), and 2004 (54). The 66 cases during the first year of implementation are from calendar year 2005 rather than fiscal year.
  46. Four of the claims were from one family group consisting of four individuals.
  47. All of the Cuban nationals arrived at POE s under the jurisdiction of the Buffalo Field Office. See Office of Field Operations, Treatment of Cuban Asylum Seekers at Land Border Ports of Entry (June 10, 2005). In one case, USCIS determined that it was appropriate to remove the asylum seeker from the expedited removal process, and therefore the individual was placed in removal proceedings without a threshold screening determination.
  48. The data were taken from the USCIS Asylum Pre-Screening System and HQASM records.
  49. Percentages in charts reflect approximate values.
  50. As stated previously, in one case, USCIS determined that it was appropriate to remove the asylum seeker from the expedited removal process, and therefore the individual was placed in removal proceedings without a threshold screening determination.
  51. Of the family relatives that were anchors for the asylum seekers, 11 were legal permanent residents of the U.S., and 8 were U.S. citizens. Three anchor relatives were refugees or asylees. The remaining anchor relative had been granted temporary protective status. Temporary protective status is granted to eligible asylum seekers from foreign states designated under section 244(b) of the INA. Persons granted temporary protective status receive (i) a temporary stay of deportation and (ii) temporary employment authorization. See 8 C.F.R. section 244.
  52. See Inspector’s Field Manual (M-450), pp. Chapter 17.8: Detention of Aliens at Ports-of-Entry, Restraints Procedures (9.13), updated March 2006. http://onlineplus.ins/lpbinplus/lpext.dll/ Info base/m450/m450-1?f=templates&fn=document-frame.htm&2.0.
  53. See Inspector’s Field Manual (M-450), pp. Chapter 17.8: Detention of Aliens at Ports-of-Entry, Asylees (9.5), updated March 2006. http://onlineplus.ins/lpbinplus/lpext.dll/ Info base/m450/m450-1?f=templates&fn=document-frame.htm&2.0.
  54. INA § 235(b)(1)(B)(iii)(IV); 8 C.F.R. § 235.3(b)(2)(iii). Detention is mandatory unless parole of an individual is required to meet a medical emergency or is necessary for legitimate law enforcement objectives. Once a CBP inspector places an individual into the expedited removal process, the responsibility for the individual’s detention lies with DRO staff.
  55. ICE Memorandum, DDFM Updates (June 26, 2006).
  56. Procedural Issues Associated with Implementing the Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries. Statement of Principles (6).
  57. See Inspector’s Field Manual (M-450), Chapter 17.11: Asylum Claims/Safe Third Country Agreement with Canada, Dispute Resolution Under the Safe Third Country Agreement (e), updated March 2006. http://onlineplus.ins/lpbinplus/lpext.dll/ Info base/m450/m450-1?f=templates&fn=document-frame.htm&2.0.
  58. At the local level, CBP Officers may encounter applicants who do not believe that their case was determined appropriately. There may be situations in which the applicant claims that there is new material evidence, or evidence that was not previously available to Canadian officials. Procedures to address requests for reconsideration have been implemented at the local level because, according to CBP, requests for reconsideration have originated after individuals are returned to the country of last presence. CBP procedures provide that the CBP Port Director may contact the CBSA Manager in writing, providing the name of the applicant and a summary of new evidence and supporting documentation. The CBSA Officer reviews the case and determines whether the evidence was considered at the time of the interview. If the evidence was already considered, the information is provided to the CBP Port Director, with confirmation that the case will not be redetermined. If it is determined that the applicant is eligible to make a refugee claim in Canada, the CBSA Manager requests a return of the applicant. Any further disputes that cannot be solved at the local level are referred to the USCIS Asylum Division Director for resolution. See Inspector’s Field Manual (M-450), Chapter 17.11: Asylum Claims/Safe Third Country Agreement with Canada, Dispute Resolution Under the Safe Third Country Agreement (e), updated March 2006. http://onlineplus.ins/lpbinplus/lpext.dll/ Info base/m450/m450-1?f=templates&fn=document-frame.htm&2.0.
  59. During the first year of implementation, CBP field offices reported a very small number of cases involving requests for reconsideration. CBP Headquarters was advised of three requests received in the port of Buffalo, and one request in Detroit. There was some initial confusion at certain ports of entry as to how to process requests for reconsideration. However, staff at the ports of entry have now been made aware that they may forward information to the CBSA, if appropriate.
  60. See Inspector’s Field Manual (M-450), Chapter 17.11: Asylum Claims/Safe Third Country Agreement with Canada, Returnees – Aliens who entered the United States either legally or illegally and are returned from Canada pursuant to the Safe Third Agreement, updated March 2006. http://onlineplus.ins/lpbinplus/lpext.dll/ Info base/m450/m450-1?f=templates&fn=document-frame.htm&2.0.
  61. See Safe Third Lesson Plan at 6-7, 9, 10; Asylum Officer Basic Training Course. Asylum Eligibility Part IV: Burden of Proof, Standards of Proof, and Evidence, updated January 27, 2006.
  62. Applicants who are subject to the Agreement may be detained when they arrive at a land border POE. During the first year, the time varied among field offices from when the asylum seeker first arrived at the POE to when his or her threshold screening determination was completed.
  63. Any decision regarding the public interest exception is determined by the USCIS Director or his or her designee. On March 8, 2005, the USCIS Director delegated the authority to the Director of the Office of Refugee, Asylum and International Operations.
  64. During the first year of implementation, the UNHCR disagreed with the U.S.’s decision not to exercise the public interest exception in two cases. One case involved same-sex partners and one case involved a close family member who did not have the required legal status in the U.S. to qualify as an anchor relative.
  65. “Family member” is defined under the Agreement as “the spouse, sons, daughters, parents, legal guardians, siblings, grandparents, grandchildren, aunts, uncles, nieces, and nephews.” Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, Article 1.
  66. See DHS and DOJ rules at 69 Fed. Reg. 69479-69490 (November 29, 2004).
  67. See Defense of Marriage Act § 3, 1 U.S.C. § 7 (providing that, for the purposes of federal law, ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife). “Family member”  under the Agreement is defined as ”spouse, sons, daughters, parents, legal guardians, siblings, grandparents, grandchildren, aunts, uncles, nieces, and nephews.” Agreement Between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries. Article 1(1)(b). Also, Article 1(2) provides
    “[e]ach Party shall apply this Agreement in respect of family members and unaccompanied minors consistent with its national law.”

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