When the United States and Canada agreed in March to close their border to asylum seekers at unauthorized entry points, Canadian officials said they had received assurances from their U.S. counterparts that the asylum seekers they turned back wouldn’t be deported.
Now at least one has been. At least eight others, including Nduwimana, are being held at a federal detention facility in Batavia, N.Y., many with final removal orders. One of them, a Ghanaian man, was pulled off a plane this month, avoiding deportation only after a lawyer obtained a temporary stay of removal.
Ottawa is stepping in — kind of.
Canadian Immigration Minister Marco Mendicino this month exempted five of those asylum seekers from the border restrictions, according to Kate Webster, their Toronto-based lawyer. Another application is pending. That means they will be allowed to enter Canada, if the United States releases them.
“While we absolutely welcome this decision and are very happy about it, we’re mindful that this is only a small piece of the puzzle and that the exemption on its own is not a complete solution,” Webster said.
Exemptions may be issued in “exceptional” situations when the foreign, immigration or public safety minister deems an individual’s presence in Canada to be of “national interest.” They were granted to foreign hockey players this year so the NHL could complete its season.
Advocates say their issuance to the asylum seekers amounts to an admission that the border restrictions aren’t being implemented the way Canada said they would be. They fear the known cases are just the tip of an iceberg — that others whom Canada turned back are in imminent danger of being deported by the United States to countries where they face harm, or already have.
Days after Webster received word of the exemptions for five of the six asylum seekers she knew about, her phone rang. Two more asylum seekers were on the line. They also had been directed back by Canada, detained by U.S. Customs and Immigration Enforcement and placed in removal proceedings.
“I have very serious concerns that there are many more in these circumstances and we just don’t know about them,” Webster said.
“It’s definitely time to revisit the policy,” Maureen Silcoff, president of the Canadian Association of Refugee Lawyers, said. “It’s not possible to turn a blind eye to this situation.”
Canadian officials declined to comment on the cases or the exemptions, citing privacy rules. A spokesman for Mendicino said the immigration ministry had “in a number of exceptional circumstances” granted such exemptions to refugee claimants to enter Canada from the United States.
“In each instance, these decisions were exercised in accordance with our domestic laws, international obligations towards refugees and protected persons,” spokesman Alex Cohen said, “and in strict compliance with public health and safety protocols at the border.”
During the pandemic, the Trump administration has used emergency powers to work toward its long-standing goal of limiting asylum, effectively sealing the United States off to those seeking refuge.
Canada said in March that it would screen and quarantine asylum seekers who entered at unofficial crossings. In a reversal days later, officials said they would be sent back.
Advocates condemned the shift. They feared the United States would deport those turned back, putting both countries at risk of violating treaty commitments to non-refoulement — returning migrants to countries where they could face persecution.
Amid the outcry, Canadian officials said they were “urgently” discussing the issue with their U.S. counterparts.
“We are very much aware of the problem of refoulement,” Deputy Prime Minister Chrystia Freeland told reporters in March. “It was, and continues to be, important for Canada to have assurances that that would not happen to those returned to the United States.”
The State Department referred questions to the Department of Homeland Security, which did not respond to requests for comment. Canadian officials declined to provide a copy of the diplomatic note detailing the assurances because, they said, it represents “state-to-state communications.”
A spokeswoman for Public Safety Minister Bill Blair said Canada is in “continuous discussions” with the United States on border issues and both countries are committed to non-refoulement. Spokeswoman Mary-Liz Power said Canada has received assurances that most asylum seekers who are turned back will be able to return and make their claims when the curbs are lifted.
Silcoff, of the refugee lawyers’ association, is unsatisfied.
“If there’s assurances, whatever they are, they’re not working and they’re not effective,” she said.
“Irregular” asylum seekers — those who cross at unauthorized entry points, such as Roxham Road — have entered Canada in growing numbers since President Trump’s inauguration in 2017. Before the border was shut down in March, they were allowed to file asylum claims and stay in the country until their cases were decided.
That’s not an option at authorized entry points. Under a 2004 agreement, those who enter Canada at official land border crossings are bounced back to the United States — and vice versa. The premise is that both countries are safe for those seeking refuge, so they must make their claims in whichever country they first arrive.
A Canadian court in July ruled the 2004 pact unconstitutional because it exposes asylum seekers to likely detention and possible deportation by the United States.
The deal, which remains in place while Ottawa appeals, is silent on unauthorized entry points. More than 58,000 asylum seekers have entered Canada at such crossings since 2017. Nearly 15,000 of their claims have been accepted, around 12,000 have been rejected and almost 30,000 are pending.
The new border restrictions effectively extend the 2004 agreement across the entire frontier. As a result, the number of irregular asylum seekers has plummeted. Since the border was closed, Canada has directed 226 of them back to the United States, according to Canada Border Services Agency spokeswoman Rebecca Purdy.
A spokeswoman for U.S. Customs and Border Protection said the agency doesn’t track the number of asylum seekers that Canada directs back to the United States who are detained or deported.
“Generally, an individual who attempts to make illegal entry into Canada and is returned to the U.S. who is admissible into the U.S.,” such as someone with a valid visa, will be admitted, spokeswoman Stephanie Malin said. “Individuals who do not have a legal status in the U.S. or who are removable on criminal or other grounds will be deemed inadmissible, processed for removal and turned over to ICE.”
Purdy said Canada collects information about those it directs back so that it can process their claims if they return after the border measures are relaxed, but it doesn’t track them while they’re in the United States.
Webster said she learned about these asylum seekers by “pure chance.” A volunteer with a service group in Buffalo gave her number to Nduwimana. He met the others in detention and gave them her number.
One who called was Kedmon Mgowozi. The Tanzanian man sought asylum in Canada in August, was turned back and detained. One day, his calls stopped. Others at the facility said he had been forcibly removed from his bed.
ICE spokesman Marcus A. Johnson said Mgowozi was deported to Tanzania on Dec. 1, pursuant to a removal order issued in 2006.
Webster’s clients entered Canada at unofficial crossings. Border guards recorded their biometrics, handed them forms stating they could return when the border restrictions were lifted and drove them across the border, where U.S. officials were waiting to arrest and detain them.
Some of the detainees have failed asylum claims in the United States; others have pending claims. Webster said many struggled to gather evidence to support their claims or had no legal representation. She said the pandemic doesn’t relieve Canada of its obligation to assess the risks they face.
The Washington Post interviewed some of the asylum seekers before the exemptions were granted.
Javier Antonio, fleeing gang harassment in El Salvador, said Canadian authorities wished him “good luck next time.” The 24-year-old asked that his surname be withheld to avoid identifying him to gangs back home. Under a Department of Homeland Security rule that takes effect in January, victims of gang violence generally won’t be granted asylum in the United States.
Nduwimana, 44, said he was persecuted in Burundi after blowing the whistle on government abuses. He said he was kidnapped and beaten. His captors told him to leave Burundi.
“I’m afraid to go back to my country because I will be subjected to die,” he told Canadian border agents when he sought asylum in October. “But they didn’t even mind. They sent me back to the United States.
Canada has deferred most deportations to Burundi amid what the Canada Border Services Agency has called the country’s “humanitarian crisis.” The United States in June announced visa sanctions on Burundi, citing a “lack of cooperation in accepting its citizens and nationals ordered removed.”
Johnson said that CBP deemed Nduwimana inadmissible in 2017 and that an immigration judge ordered his removal that year. He said he has exhausted appeals and “will remain in ICE custody . . . pending his removal.”
The exemptions won’t allow the asylum seekers to bypass Canada’s quarantine rules or its asylum process. They’ll just allow them to cross the border.
The question is whether ICE will release them.
Johnson said ICE doesn’t comment on “pending actions or potential releases.” Purdy said that, in general, when national interest exemptions are issued, Canada’s border agency contacts its U.S. counterparts to “discuss next steps.”
Webster said asylum seekers are unlikely to be aware of the exemptions. Requiring each to file an application, she said, is “fundamentally flawed.”