Biden and Trudeau Agree to Expand Safe Third Country Agreement
FAIR Take | March 2023
Last week, President Biden and Canadian Prime Minister Justin Trudeau announced they have agreed to expand the Safe Third Country Agreement between their respective countries. The Agreement governs how the U.S. and Canada may treat asylum seekers arriving from the other country.
The U.S.-Canada Safe Third Country Agreement, which became effective in 2004, allows Canada to turn back asylum-seekers arriving from the U.S. if the aliens have not first attempted to claim asylum in the U.S. Likewise, it also allows the U.S. to turn away asylum-seekers arriving from Canada if they have not attempted to seek asylum in Canada. Built into the agreement are exceptions for minors, certain family members, individuals with valid visas, and circumstances “in the public interest.”
The U.S.-Canada agreement also has one major loophole: it applies only at official ports of entry. With the recent surge in illegal immigration, this has meant that aliens traveling up from Central America have been able to pass through the United States and sneak across the northern border to claim asylum in Canada. Or, aliens could fly to Canada and sneak across the border to the U.S. in order to claim asylum.
Canada and the United States have been discussing how to improve the Safe Third Country Agreement for nearly five years.
Last week, the two leaders announced they had agreed to expand the Agreement so it applies to aliens arriving anywhere along the 5,500-mile shared border. For the Canadian government, this is particularly important as over 39,000 aliens traveled through the U.S. in 2022 before crossing illegally into Canada to claim asylum. Meanwhile, illegal border crossings from Canada into the U.S. have more than tripled since 2020, reaching 110,000 in FY 2022.
In return for expanding application to the entire border, Canada will agree to admit an additional 15,000 migrants from the Western Hemisphere over the next year on a humanitarian basis. It is not clear yet whether these migrants will have to qualify for asylum or whether Canada will create a new category for admission.
Safe third country agreements help governments share the distribution of asylum claims and reduce the burden of massive waves of migrants claiming asylum in one country, when they can receive protection in multiple countries within a region. In particular, they alleviate the impact felt by high-destination countries, such as the U.S. and Canada, when waves of migrants (often with no legitimate asylum claims) travel through multiple safe countries in order to reach a preferred country of settlement. Underlying these agreements is the principle that an individual who is truly fleeing persecution will seek protection as soon as possible—i.e. in the first safe country where they arrive.
For these reasons, Congress has encouraged safe third country agreements by expressly authorizing the federal government to enter into them. (See Section 208(a)(2)(A) of the INA). Still, open borders advocates have fought against them. They fiercely opposed the Trump administration signing agreements with El Salvador, Honduras, and Guatemala. And to their delight, the Biden Administration promptly rescinded these upon taking office.
Other groups have even opposed the agreement between the U.S. and Canada. Amnesty International Canada, the Canadian Council for Refugees, and The Canadian Council of Churches are challenging the validity of the U.S.-Canada Safe Third Country Agreement, claiming “[t]he United States is not a safe place for refugee claimants escaping persecution.” In response to last week’s news that the agreement would be expanded, a lawyer for Amnesty International called the move “unconscionable” from a human rights perspective. “It’ll just push people to more remote areas, more dangerous crossings.”
The logic of this argument, however, may fall upon deaf ears in the United States. If the U.S. is not safe for migrants seeking persecution, how do they explain the tens of thousands of aliens who claim fear of persecution each year only upon arriving in the U.S.? President Biden could actually take meaningful steps towards ending the border crisis if he sought to restore the safe third country agreements with Guatemala, Honduras, and El Salvador and strove to negotiate more.