Earlier this year, a man from Tanzania tried to seek asylum in Canada by crossing the border at Roxham Road, north of Champlain, NY. However, unlike thousands of others who had crossed in previous years, he was turned back to the U.S. under new pandemic-related border restrictions.
Canadian police gave him a piece of paper saying to come back when the border reopened, but returned him to U.S. Customs and Border Protection agents, who detained him over lack of authorization to be in the United States. He was transferred to the federal immigration detention facility in Batavia, when he reached Jennifer Connor, executive director of Justice for Migrant Families in Buffalo.
"[In] September and October and November, I feel like we have really seen more people who entered into Canada not through ports of entry," said Connor, whose organization provides advice and assistance to detainees in Batavia.
Connor said many asylum seekers being turned back at the border lack good information about the current regulations in place, particularly as news travels by word of mouth and social media.
"So, they make very difficult decisions," she said, "including crossing a border during a pandemic, that is not a decision people take lightly."
The Tanzanian asylum seeker had a heart condition and became seriously ill in detention. Connor described his health crisis as "life-threatening," but she learned a few weeks ago from others incarcerated at Batavia that Immigration and Customs Enforcement had carried out his deportation.
Asylum seekers are being turned back under exceptional pandemic measures
Before the onset of the COVID-19 pandemic, individuals who reached Canadian soil by walking the border between official border crossings could apply for asylum. One dead-end lane in Clinton County, Roxham Road, became such a popular “unofficial” crossing spot that Canadian police set up a shelter and waited 24/7 to detain and process new arrivals.
But since Canada and the U.S. restricted travel across the border in a mutual agreement last March, Canada began turning back asylum seekers at Roxham Road and returning them directly to American border agents. At the time, the measure was described as exceptional, but it has now lasted more than nine months.
Back in March, Canadian officials at the highest levels of government were asked if asylum seekers handed over to U.S. authorities would be detained. The minister in charge of the border, Bill Blair, responded on Mar. 20.
"Under the overwhelming majority of circumstances, they will not be detained, they'll simply be returned back to the United States or, for example, if for example, if they come from Canada and are returned to us, they would not be detained," Blair said. "There are very, very limited exceptions."
Behind the scenes, immigrant advocates say Canadian officials were telling them last spring that Canada had assurances from the U.S. government that individuals turned back would not be detained.
Publicly, then-Minister of Foreign Affairs, Chrystia Freeland said that Canada certainly didn’t want to see people deported into dangerous situations, referred to in international refugee law as refoulement.
"It was and continues to be important for Canada to have assurances that that would not happen to people returned to the United States, so this is an issue which we are urgently discussing now," Freeland said during a Mar. 27 news conference.
A U.S. Customs and Border Protection spokesman who asked not to be quoted said recently there were no statistics kept on individuals turned back by Canada, but that the agency could detain people without authorization to be in the United States.
Last month, Minister Blair’s spokesperson, Mary-Liz Power, wrote in an email that 208 asylum seekers were turned back to the U.S. between March and the 11th of November, 153 from Quebec, the rest in British Columbia and Manitoba.
"We have received assurances from the U.S. that individuals claiming asylum will be returned to Canada when these restrictions are lifted," Power wrote.
A handful of immigration lawyers on both sides of the border expressed doubts about the likelihood that people in U.S. custody would be "returned" to Canada without exceptional advocacy on their behalf.
Cumulatively, they identified ten asylum seekers who had been held in Batavia and the Northwest Detention Center in Tacoma, Washington. The attorneys said there were likely others who simply had not contacted them, including individuals who spent time in detention before being released on bond.
The Washington Post reported Tuesday that Canada has granted exemptions to five detained asylum seekers to cross the border, dependent on their release by U.S. authorities.
Hazards in U.S. custody
About a quarter of detainees at Batavia tested positive for the coronavirus during an outbreak in the spring. Connor said measures to keep the virus out have also caused difficulties for people in incarceration.
"People can't visit. Lawyers are visiting in a very limited capacity," she noted.
"The situation is rife, not just for people's health not being protected, but also for abuses and maltreatment," Connor said.
"We are hearing a rise in mental health crises because of the pressure of what's going on, [and] the fear," Connor added.
Craig Damian Smith, the associate director of the Global Migration Lab at the University of Toronto said the longer the pandemic border measures last, the more likely people crossing are to be subject to detention. In the past, many who claimed asylum this way came to the United States on tourist visas with the intention of going on to Canada. By now, their stay has likely expired.
Put that together with rough conditions in U.S. detention facilities, he says, and Canada’s decision to turn people back seems less reasonable today than "in that context of rapid emergency measures" back in March.
"The fact that they have continued to turn people back at the border since then, I think it's quite unconscionable," he said.
Advocates hope to dissuade those in the U.S. from coming north
Some immigrant advocates have become so concerned, they’ve started trying to try and reach the people who might be thinking about coming to the border.
Wendy Ayotte, a member of a volunteer group that usually helps asylum seekers once they reach Canada but had now been trying to reach people considering crossing about the ongoing risks, appeared on the radio program of the Haitian Montreal news outlet, Intexto this fall.