How gender-based violence factors into Canada-US refugee policy

An ongoing federal court case could determine whether Canada can consider the US to be safe enough for refugees and asylum-seekers — especially women facing violence.

By: /
June 20, 2019
A woman walks in Tijuana, Mexico, April 22, 2019. Asylum seekers from Central America, like her, flee their countries, often due to poverty and violence. REUTERS/Andres Martinez Casares

In June 2018, then-United States Attorney General Jeff Sessions reversed the grant of asylum, in the US, to a Salvadoran woman who had fled domestic abuse from her husband. The woman, identified as A.B., alleged that she had been brutally and consistently beaten and raped by her husband throughout their 15 years of marriage back home. According to her asylum claim, he’d repeatedly threatened to kill her, even brandishing a loaded gun or a knife on multiple occasions. When she eventually sought a divorce, her ex-husband and his associates made repeated threats on her life.

A.B. fled to the US, where she applied for asylum after an asylum officer determined that she had a credible fear of persecution in her home country. After an immigration judge denied her claim, she successfully appealed for his decision to be overturned. When the judge refused to issue a new ruling, Sessions stepped in to slam the door on similar future claims.

His decision in Matter of A-B would have sweeping implications for the nation’s asylum system. Under Sessions’s ruling, gang and domestic violence would no longer be considered grounds for asylum in the US. Persons seeking asylum on such claims would be deported to their countries of origin.

From a human rights standpoint, Sessions’s timing was inauspicious. Domestic and gang-related violence are what’s largely driving the ongoing refugee crisis from the Northern Triangle of El Salvador, Honduras and Guatemala. Gender-based violence, in particular, is central to the plight of those who flee the region. It may also be a deciding factor in a Canadian Federal Court case that will determine whether the US can continue to be considered a “safe” country for refugees and asylum-seekers in the eyes of Canadian law.

Origins of a challenge

In July 2017 — almost one full year before the Sessions decision — a different Salvadoran woman and her two young daughters took a taxi from a Buffalo, New York asylum claimants’ shelter to the Fort Erie border crossing to file an asylum claim in Canada. There, a team of University of Toronto law students had been dispatched by lawyers from Toronto’s Downtown Legal Services to keep tabs. As they’d predicted, the woman was denied entry.

The team was prepared. The woman, called “ABC” in legal documents, swiftly became the centre of a legal challenge to the Safe Third Country Agreement, or STCA: a declaration Canada signed in 2002 stating that the US can be considered a “safe third country” for refugees and asylum-seekers. This bilateral agreement effectively determined that foreigners who had passed through the US in order to file for asylum in Canada would be turned away at the border, and vice versa.

The Canadian Council for Refugees (CCR), Amnesty International and the Canadian Council of Churches promptly joined the challenge as public interest litigants. They argue that the US “does not fully comply with its refugee obligations,” which makes it unsafe for at least some refugees on several grounds. Rates of acceptance of similar claims vary widely, for example, depending on region. Most people are ineligible to make a claim if they’ve been in the US for more than a year. And, the litigants note, “the U.S. has an inconsistent record of recognizing gender-based persecution.”

"A federal judge noted that the 'vagaries of U.S. law' put women domestic violence survivors 'at real risk.'"

In May 2017, Amnesty International and the CCR submitted a 52-page brief to the Canadian government that outlined how the US asylum system had been further jeopardized, both legally and in practice, by the Trump administration. The “Muslim ban” — a colloquialism for a series of executive orders, initiated by Donald Trump early in his presidency, that sought to block immigration from a number of Muslim-majority countries — was a catalyst. Janet Dench, executive director of the CCR, said in an interview with OpenCanada that the government refused to see the document. Legal action was the natural next step.

Now, with the case well underway, the Canadian government began cross-examining witnesses in the challenge last November, and CCR says oral arguments are expected to begin in September. But this isn’t the group’s first go at this proverbial rodeo.

A decade earlier, in 2007, all three organizations had been involved in a separate STCA challenge that, again, contested Canada’s designation of the US as a safe third country. A federal judge upheld the challenge, and explicitly noted that the “vagaries of U.S. law” put women domestic violence survivors “at real risk of return to their home countries.” But the decision was overturned by the Federal Court of Appeal on technical grounds that, according to the CCR, did not evaluate the safety of the US for refugees.

The CCR notes, in an explanation on its website, that the mere designation of the US as a safe third country introduced new risks that had not previously been associated with the refugee claim process in Canada. Previously, would-be Canadian refugee claimants would be able to enter the US at a legal port of entry and from there proceed to Canada to make their claims. But once the STCA came into effect, only claimants who had entered the US “irregularly,” without being processed by border officials, could make a claim in Canada. The process not only privileges a potentially dangerous process of stealthy migration on the part of individuals seeking asylum but can be costlier for the government to manage.

Despite thwarted efforts to challenge the US as “safe” more than a decade ago, Dench is more optimistic about the challenge’s prospective outcome this time around. “In terms of the facts, the court found [in our favour] in 2007,” she said. “The situation now is worse. Our case is even stronger now.”

The case may be stronger, but it will likely face hard resistance from a Liberal government that has, this year — despite its emphasis on feminist foreign policy and women’s health internationally — moved decisively to tighten Canada’s asylum laws. A controversial budget proposal, issued in April, sought to prevent asylum seekers from making refugee claims in Canada if they had already filed a similar claim in another country, including the US.

Another matter the federal government has identified as a point of frustration: over 41,000 asylum-seekers made “irregular” border crossings into Canada from the US, taking care to avoid official checkpoints where, under the STCA, they would have been turned back. Critics of the STCA say that the desperation evident in this surge of potentially risky border crossings is further indication that the agreement must be revoked. The federal government, however, seems primarily concerned about staunching the flow of claimants.

In March, Border Security Minister Bill Blair told The Canadian Press that “there has been some discussion” about amending the STCA such that asylum-seekers would be disinclined to enter Canada through unofficial points of entry. But Blair did not indicate any plans to scrap the STCA altogether. “The agreement worked quite effectively for well over a decade and continues to work at regular points of entry and at our airports,” he said.

A charter violation?

As was true of the 2007 challenge, the current case argues that the US’s failure to adequately protect refugees undermines its “safe” designation. Both cases also hinge on the argument that returning refugees or asylum claimants to the US constitutes a violation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

The Sessions decision on A-B came just weeks before the Canadian cohort of litigants filed its second, and final, round of evidence to the court in July 2018. Included among dozens of affidavits from academics and experts, as well as from people who had been returned to the US from Canada because of the STCA, were documents that would show how this latest shake-up in American asylum law further violated Section 15 of the Charter.

Section 15 declares that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The CCR and other advocacy groups argue that the Sessions decision, which would disproportionately affect women’s access to US refugee protections, effectively singles out victims of gender-based persecution. But Sessions’s ruling is not the only gender-based evidence of a Section 15 violation at the challengers’ disposal.

“There were already problems with the asylum system in the United States, if you were to look at it from a gendered lens, even prior to that decision,” Prasanna Balasundaram, a lawyer with Downtown Legal Services who’s working on the case, said in an interview. “But that decision, I think, is highly problematic because of the focused way in which it strips protection on gendered grounds.”

Balasundaram said that the one-year time limit imposed by the US on asylum claims has been shown to disproportionately affect women fleeing domestic violence. It also hinders LGBTQ claimants who might not be comfortable with coming out as part of the asylum application process.

Dench of the CCR said it’s purely coincidental that the timing of the litigants’ final court filing so swiftly followed the Sessions ruling. But that ruling, she added, certainly supports their case.

“The question is: Does someone fleeing domestic violence or other nonstate actors, like a criminal gang, qualify for refugee status?” Dench said. “In Canadian law, it is clear that the situation of somebody who has fled domestic violence — if they can also show that the state is unwilling or unable to protect them — it falls within the definition. Sessions’s new decision is precedential and closes the door on that situation.”

Where gender-based violence fits in

It’s important to note that the current challenge to the STCA does not strictly rest on gender-based asylum policy in the US. ABC is one of three litigants, and the sole litigant whose argument for asylum is grounded in persecution by non-state actors. But her circumstances closely echo the violence allegations described in The Matter of A-B, and more broadly gesture toward the gender-based nuances driving the desperate flow of migration northward from Central America’s Northern Triangle.

"The current influx of Central American migrants has been demographically unusual: so many of its members are women and children."

According to The Globe and Mail, ABC says in her affidavit that her husband was singled out by the infamous MS-13 gang after he helped Salvadoran police identify a member of the gang who had killed his brother. When he fled to Canada in 2005, the gang’s threats were redirected to ABC and her daughters. She says that gang members would often follow her girls home from school, and even murdered her landlord. Then, in 2013, she says that gang members broke into her home, raped her, robbed her, and threatened to kill her daughters if she spoke to police. She alleges that they proceeded to attempt to extort her.

In the Northern Triangle, ruthless and widespread gang violence coincides with some of the highest femicide rates in the world. Intimate partner violence is an epidemic, and women and girls are explicitly targeted by gangs. US border officials have frequently remarked that the current influx of Central American migrants has been demographically unusual: so many of its members are women and children rather than single, solitary men. This distinction is no coincidence.

Nor was Sessions’s ruling. The decision would overlap with the Trump administration’s so-called “zero tolerance” policy on undocumented immigrants, which saw thousands of mostly Central American immigrant parents separated from their children, by US border officials, in the spring and summer of 2018. Both communicated an unwillingness from the US to provide refuge for victims of non-government persecution, an all-but-explicit dismissal of ethical duty for the humanitarian crisis at its doorstep.

“The prototypical refugee flees her home country because the government has persecuted her,” Sessions wrote in his decision on A-B, adding that “the asylum statute does not provide redress for all misfortune.” Victims of powerful gang networks or potentially lethal misogyny need not apply.

Instead, Sessions declared that an asylum-seeker fleeing violence from someone not affiliated with the government, such as a gang or romantic partner, must prove that the state somehow “condoned” or is otherwise “completely helpless” to stop said persecution. ACLU Immigrants’ Rights Project attorney Jennifer Chang Newell wrote in December 2018 that this elaboration marked “a stark departure” from the existing standard, whereby asylum claimants must show that the government is merely “unable or unwilling” to protect them — as is true and uncontested in the eyes of Canadian law.

A federal judge in the US ultimately blocked Sessions’s decision, but Human Rights Watch has reported that the case remains in legal “limbo” until Sessions’s decision is totally overturned. So, too, do the fates of thousands of domestic violence survivors pursuing asylum cases in the United States’s backlogged (and worsening) immigration court system.

It’s difficult to estimate whether US hostility to Central American asylum-seekers will prompt any special consideration in the safe third country challenge. When asked if the timing of the Sessions decision may have sped along the legal process in the current case, University of Toronto Law professor and chair in Human Rights Law Audrey Macklin said by email, “I think the answer…is no.”

Macklin also said that she can say “with confidence” that “whatever the outcome of the Federal Court decision, it will be appealed.” From there, the case would be taken to the Federal Court of Appeal and then, potentially, the Supreme Court of Canada.

Apart from the determination of the US as either safe or unsafe, Canadian refugee law will not be affected by whatever happens to the STCA. But the outcome of the challenge could open new prospects for scores of asylum-seekers and grant new, and less risky, avenues for refuge through the Canadian system.