Homeland Security takes steps to tighten asylum rules at Canadian border

A U.S. Customs and Border Protection officer speaks to a British Columbia motorist at the Peace Arch border crossing in Blaine, Wash., across the Canada-U.S. border from Surrey, B.C. (Darryl Dyck/The Canadian Press)

The U.S. Department of Homeland Security says people seeking asylum at the border with Canada will have less time to consult a lawyer before making their case, as U.S. President Joe Biden's asylum halt makes its way to Canada’s doorstep. 

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Biden announced sweeping changes mostly targeted at the U.S. border with Mexico in June, as the issue remains a thorn in the Democrats' side ahead of the November election. The new procedural changes, which the department confirmed Tuesday, will affect migrants crossing into the U.S. from Canada.

The number of migrants crossing between Canada and the United States is much smaller than at the U.S.-Mexico border, but recent increases have caught the attention of Republicans.

The Department of Homeland Security said it reviewed the Safe Third Country Agreement with Canada and concluded that it could streamline the process without affecting access to fair procedures for determining a claim to asylum. 

Under the agreement, which came into effect in 2004, refugees must seek asylum in the first of the two countries they land in. 

The procedural change means people entering the U.S. from Canada will now have four hours to consult with lawyers. It is a significant drop from the previous 24-hour time frame, said Kathleen Bush-Joseph, a policy analyst with the Migration Policy Institute in Washington, D.C.

“This makes it incredibly difficult when you think about how legal service providers work,” she said. 

The change also means border officers will only consider the documentary evidence that asylum claimants have with them when they arrive. People fleeing for their lives don’t tend to have their belongings with them, Bush-Joseph said, “let alone reams of documentation of persecution.”

Ottawa didn't immediately respond to a request for comment.

“This is a huge red flag,” said Jamie Chai Yun Liew, a law professor at the University of Ottawa.

“It really begs the question whether or not the U.S. is meeting its international obligations.”

She was part of a legal team that intervened when the agreement was before the Supreme Court of Canada. The court ruled last year that the pact with the U.S. is constitutional.

Prime Minister Justin Trudeau and Biden updated the Safe Third Country Agreement around the same time to close a loophole that allowed people who skirted official border crossings to make a claim. 

It led to a dramatic drop of people crossing into Canada from the U.S. at unofficial border crossings, but the number of people travelling in the opposite direction has started to increase. 

A U.S. Border Control Agent conducts a routine inspection at the border between Cornwall, Ont. and Massena, N.Y. (Heather Ainsworth/AP Photo)

U.S. Customs and Border Protection data shows agents have taken 12,612 people into custody along the international border with Canada in the first six months of 2024. The stark increase – up from 12,218 for all of 2023 -- has become a talking point for Republicans as immigration and border security remains a political liability for Democrats.

Marco Rubio, the Republican senator for Florida, sent a letter to Homeland Security Secretary Alejandro Mayorkas last month urging him to heighten precautions along the U.S.-Canada border.

“(T)he possibility of terrorists crossing the U.S.-Canada border is deeply concerning given the deep penetration of Gazan society by Hamas,” Rubio said in the letter, after Canada pledged an increase to temporary visas for Gaza residents looking to join family members in the country.

Donald Trump, the former president and Republican nominee, hammered his criticism of border security and migration under the Biden administration during a long talk with tech billionaire Elon Musk on Monday night. 

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Trump repeated claims the border was Vice-President Kamala Harris’s problem and claimed the presumptive Democratic presidential nominee was “not a smart woman.”

The new rules at the Canada-U.S. border mirror the time-constraint changes brought to America's border with Mexico earlier this year. 

Bush-Joseph said lawyers have already seen fallout from the policy. Four hours is usually not enough to hear an asylum seeker’s background, find out if they are eligible for exemptions and prepare them for the interview, she said. There are additional hurdles in some cases, like not speaking the same language or the lawyer being unable to view documents.

Liew said she is sympathetic to governments trying to deal with a backlog and long processing times. But, she said, the new timelines don't have the right balance to ensure people get a fair hearing.

“It doesn’t balance the interests of an efficient movement of people at the border and ensuring that we are meeting the obligations that are owed to these people.”

This report by The Canadian Press was first published Aug. 13, 2024

With files from The Associated Press