Canadian Lawyer

www.canadianlawyermag.com 47 IMMIGRATION A CASE CHALLENGING the consti- tutionality of the Safe Third Country Agreement is again before the courts amid ongoing concern over the United States' poli- cies on immigration. The Federal Court of Canada, which heard the case in November, must now decide if the STCA violates the Charter of Rights and Free- doms — specifically s. 7, the right to life, liber- ty and security, and s. 15, the right to equality — when Canada sends asylum-seekers back to the United States. "As a result of the STCA, individuals seek- ing Canada's protection are going to be turned back at the border at a port of entry, handed directly over to the United States Customs and Border Protection and, in many cases, put right into the U.S. detention system, often without any ability to access legal counsel or evidence," says Heather Neufeld, an immigra- tion and refugee lawyer both in Canada and in California, who is also one of the lawyers involved in the STCA legal challenge. "This whole idea that these people have ac- cess to an equal system in the U.S. is a fallacy given the current U.S. asylum climate." The STCA was signed by Canada and the U.S. in 2002 and came into effect in 2004. The agreement aims to "manage the flow of refugee claimants" and assumes both coun- tries offer substantial refugee protections. Unless they qualify for a limited number of exceptions — such as already having close family in Canada — asylum seekers can't ar- rive in the U.S. and then file claims in Canada or vice versa. The agreement only applies at formal border crossings. This is the second time the Federal Court has been asked to weigh in on the agreement — in 2007, the court ruled the designation of the U.S. as a safe country was unreasonable due to its refugee record at the time. The de- cision was overturned on appeal for techni- cal reasons. Jacqueline Bonisteel, an associate with Caruso Guberman Appleby Corporate Immi- gration Law Firm, says she believes a solid case was put together. "It's certainly something immigration law- yers are paying close attention to, and we are seeing clients in our practices who are being affected by this," Bonisteel says. There is a consensus that there are now legitimate grounds to say the United States under President Donald Trump no longer meets the standard of a safe country with practices such as deporting people back to places where they're in danger of being tor- tured or killed, as well as the controversial separation of family members at the border. The country recently started turning people back at the Mexican border to wait for their asylum claims to be heard despite having Safe Third Country Agreement challenged An upcoming case will determine the legality of refusing entry to asylum-seekers from the United States "There are lots of cases where individuals genuinely need Canada's protection, and the fact they have started a process in the U.S. that they have left does not indicate they're not afraid — it actually might indicate they are extremely afraid." Heather Neufeld, Immigration Lawyer LEGAL REPORT

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