Eduardo Aguirre, Director of U.S. Citizenship and Immigration Services (USCIS),
announced today the publication of a final rule to implement a bilateral agreement
between the United States and Canada affecting asylum seekers at U.S.-Canada land
border ports-of-entry, and transiting through the United States or Canada during
removal by the other country. The regulations implementing this agreement will
take effect in 30 days.
“The agreement ensures that all asylum seekers will be heard and that individuals
will not be removed until Canada or the United States has made a protection determination.
USCIS and Citizenship and Immigration Canada have worked diligently to anticipate
and resolve potential challenges related to this agreement’s implementation.
We have ensured that asylum seekers have procedural safeguards, such as decision-making
review and the opportunity for asylum seekers to have an individual present when
interviewed about exceptions to the Agreement,” said the Director.
The initiative to enter into a Safe Third Country Agreement was included in the
30-point action plan under the Smart Border Declaration signed in December 2001
by Department of Homeland Security (DHS) Secretary Tom Ridge and Mr. John Manley,
former Deputy Foreign Minister of Canada. The Agreement highlights U.S.-Canadian
cooperation to develop mutually beneficial approaches to our common security goals
while simultaneously continuing to provide access to one of our two nations’
asylum systems for those with protection concerns. The Agreement, signed in December
2002, could not take effect until both countries published final implementing
regulations. Canada published its final regulations on November 3, 2004.
The agreement applies only to asylum seekers at a U.S.-Canada land border port-of-entry
or being removed from Canada or the U.S. through the other country. The Agreement
permits the United States to return to Canada certain asylum seekers who either
are attempting to enter the United States from Canada at a U.S.-Canada land border
port-of-entry or who are being removed from Canada in transit through the United
States. Similarly, it permits Canada to return to the United States certain asylum
seekers attempting to enter Canada from the United States at a U.S.-Canada land
border port-of entry and certain aliens being removed from the United States through
Canada. In either case, the Agreement provides (with important exceptions) that
the asylum seeker be returned to Canada, if coming to the U.S. from Canada, or
returned to the U.S., if going to Canada from the U.S., for consideration of any
request for protection based on fear of persecution or torture. The Agreement
adheres to both the United States’ and Canada’s long-standing commitment
to protect refugees by ensuring that asylum seekers’ protection claims are
heard and decided in one of the two countries.
The final rule implements the Agreement’s several exceptions to its general
proviso that asylum seekers attempting to enter the U.S. from Canada at land border
ports-of-entry be returned to Canada for consideration of their protection concerns.
These exceptions include, among others, an exemption for unaccompanied minors
and exemptions for some asylum seekers with certain family members in the United
States. The exceptions for asylum seekers with family members in the U.S. recognize
that those family members may be able to provide important support to an asylum
seeker while he or she is pursuing protection, and includes a range of relatives,
far broader than those customarily recognized under U.S. family-based immigration
laws, i.e., spouses, sons, daughters, parents, legal guardians, siblings, grandparents,
grandchildren, aunts, uncles, nieces and nephews. In order for asylum seekers
to qualify for these exceptions, their family members in the U.S. must have some
form of lawful immigrant or non-immigrant status (other than a visitor’s
visa), or have an asylum claim pending and be 18 years of age or older.
The Department of Justice is also publishing a companion final rule, which will
govern the process by which immigration judges of the Executive Office for Immigration
Review will apply the Agreement to cases arising under their jurisdiction.