During his first week in office, President Donald Trump issued three executive orders relating to US immigration, refugee, detention, deportation and enforcement policies. Two are currently in force, although their full implementation is dependent on funds being made available by the budget currently before Congress. The third, which was stayed by the courts, was replaced by a fourth on March 6, 2017, which was again stayed by the courts just hours before it was slated to take effect.
Disquiet and confusion ensued on both sides of the Canada-US border in the wake of the executive orders. Within days several foreign and dual nationals had been detained by US authorities; others were barred from boarding flights to the US or turned back at the land border. Tens of thousands of individual visas were initially revoked and then reinstated as a result of the court stay, and the number of people making irregular border crossings into Canada — avoiding official ports of entry — increased.
What are the implications of these orders for Canadians and for Canadian border and refugee policies? How should Canada respond from a public policy perspective to the new reality in the US? To answer these questions, we need to take a close look at what the orders actually say and assess them against benchmarks of an evidence-based policy framework, all while taking into account Canada’s international legal obligations.
A critique of the executive orders
(1) Enhancing Public Safety in the Interior of the United States
The first of the three orders, Enhancing Public Safety in the Interior of the United States, requires American law enforcement agencies to pursue the removal of all undocumented migrants. According to a Department of Homeland Security memorandum outlining how this executive order will be executed, anyone in the country illegally who is charged with any offence — no matter how minor (even traffic violations) — or is merely suspected of committing a crime will be a target for arrest, detention and removal. Enhancing Public Safety authorizes the hiring of 10,000 new officials to execute this plan.
The order is predicated on a presumed nexus between immigration and crime and on the notion that anyone who lacks immigration papers is dangerous. Yet there is no evidence to support this perception. There are roughly 11 million undocumented people in the United States. In the final years of the Obama administration, people who committed serious crimes were the priority for removal. President Trump’s Enhancing Public Safety order is a mandate for mass deportation: in effect, all undocumented people are presumed risky. However, studies confirm that immigrants, including so-called “illegal migrants,” are less likely to commit serious crimes or be behind bars than native-born Americans. Pulling back the curtain on Trump’s aggressive deportation plans reveals a policy in search of a clear policy problem, which in turn may create real policy problems. For example, the policy is certain to push thousands of vulnerable non-nationals further underground, including children.
(2) Border Security and Immigration Enforcement Improvements
The second executive order, Border Security and Immigration Enforcement Improvements, mandates the building of a wall at the already partially fenced border between the US and Mexico; reduces the due process rights of asylum seekers; significantly expands the imposition of mandatory immigration detention; and authorizes “expedited removal” with no right of appeal for anyone who entered the US without documents and cannot prove they have resided there for the previous two years. Mexican asylum seekers who enter the US through Mexico
will be turned back to Mexico while they await their US immigration proceedings.
The Border Security order is predicated on a belief that interdiction works — that it is possible to prevent unsolicited arrivals from entering and remaining on US territory through a combination of restrictive measures at the border and inland. At a time when the failures of Fortress Europe have become ever more apparent (thousands of migrant deaths every year but no slowdown in irregular migration), the feasibility and efficacy of the new measures are suspect.
Legal experts leave little doubt that the Border Security order puts the US in breach of its international legal obligations in relation to asylum seekers. The instruction to return Mexican and other asylum seekers to Mexico (if they entered the US from Mexico) is a direct violation of the principle of non-refoulement, codified in the 1951 Refugee Convention and its related protocol, binding on the US since 1968. The commitment to non-refoulement means not peremptorily returning anyone to a country where their human rights are at risk. It deserves mention that while Mexico may be perfectly safe for many people, Amnesty International’s recent report on the levels of violence, torture, enforced disappearances, extrajudicial executions and arbitrary detention as well as the endemic violence against LGBT people, women and girls offers compelling reasons for concern. The executive order also directs the removal of asylum applicants from countries other than Mexico, to Mexico, where they may face further removal to their country of origin. This form of chain deportation is equally a breach of the principle of non-refoulement. Advice from the UN Refugee Agency (UNHCR) is definitive on this point: applicants should be permitted to remain in the country pending a decision on their request for asylum.
Expedited removal allows the Department of Homeland Security to deport individuals in as little as 24 hours without the opportunity to appear before an immigration judge or to consult with legal counsel. Officers should refer asylum seekers trapped in an expedited removal process for a “credible fear interview” but they regularly fail to do so. As recourse to expedited removal expands, the prospect that genuine refugees will be denied access to an asylum hearing and be subject to refoulement will likely increase.
(3) Protecting the Nation from Foreign Terrorist Entry into the United States
The third executive order, a revised version of the original order with the same title, Protecting the Nation from Foreign Terrorist Entry into the United States, has been modified in an effort to resist further legal challenges. However, this order has been stayed by federal judges as well, and the President has indicated his intention to appeal to the Supreme Court.
The new version of Protecting the Nation aims to “protect the Nation from terrorist activities by foreign nationals admitted to the United States” by improving the screening procedures associated with the visa-issuance process and the US Refugee Admissions Program. The order mandates a review of the information needed about applicants for visas from all countries of origin worldwide.
Pending the implementation of new screening standards as a result of this review, Protecting the Nation suspends the entry of refugees as well as other “aliens” (including visitors, workers and students) from six Muslim-majority states (Iran, Syria, Yemen, Somalia, Sudan and Libya) for at least 90 days (Iraq was removed from this list in the revisions); reduces the 2017 targets for refugee resettlement by more than half to 50,000 from 110,000; and halts for 120 days both travel for those already approved for refugee resettlement and decisions on all applications for refugee resettlement. The executive order stipulates that refugee admissions may be resumed after 120 days for nationals of countries for whom the secretaries of state and homeland security and the director of national intelligence “have jointly determined that the additional procedures…are adequate to ensure the security and welfare of the United States.”
The replacement order omits the indefinite suspension of Syrian refugee resettlement and the priority that was to be given to refugees fleeing on the basis of religious persecution, so long as they were members of a religious minority in their home country.
With the exception of certain classes of individuals (eg. lawful permanent residents of the US, dual nationals travelling on a passport issued by a non-designated country, foreign nationals already granted asylum, refugees already admitted to the US), all other nationals of the six countries will require case-by-case reviews to demonstrate “to the officer’s satisfaction that denying entry would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest” (emphasis added) before visas or entry will be authorized.
The Protecting the Nation order appears to be based on the assumption that the vetting process for all visas to the US (visitor, student, worker, family class, permanent resident, refugee) is inadequate and flawed and has allowed the entry of people who have committed terrorist acts on American soil. The corollary seems to be “if only we get the vetting process right, there will be no terrorism in the US.” However, there is no evidence that the current vetting system is inadequate or that there is any connection between the current vetting system for immigrants and other entrants and the occurrence of terrorist acts. As Kathleen Newland and Alexander T. Aleinikoff note in a recent commentary, “refugees already are the most heavily vetted of any people who enter the United States, facing an 18- to 24-month processing period…that involves up to eight U.S. government agencies, six different security databases, five separate background checks, four biometric security checks, three separate in-person interviews, and two interagency security reviews.”
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All of the executive orders fail to clearly identify the policy problems that need to be addressed. More critically, there is no evidence to assume that these new measures and “solutions” will address any problems, however defined. For example, in Protecting the Nation, putting the onus on all countries to provide information required by the US about their nationals as part of an enhanced US vetting process seems misguided. At the very least, it is unclear why countries would cooperate.
What would happen if they don’t have the information or the capacity to retrieve it? Why should the US accept the veracity, reliability or trustworthiness of any information provided, particularly from nondemocratic or refugee-producing countries? Why should individuals be denied entry because of their country’s noncompliance? The administration has offered no evidence as to why the admission of more than 50,000 refugees has been identified to be detrimental to the national interest or why foreign nationals of six Muslim-majority countries have been singled out for differential treatment.
It also appears that little if any consideration has been given to the implementation of the orders. There was no consultation within government, with agencies responsible for implementing the orders; with Congress or the states; or with employers or universities on the impact of the visa suspensions for workers or students. There were no clear directives given to implementing officers on the ground, or to airlines. There was no consultation with or advance notification to transit countries that may be affected, countries of first asylum from which the US had already selected refugees or the UNHCR; and the whole package is subject to the availability of appropriations through a budget not yet passed by Congress. Perhaps most importantly, there seems to be no consideration of the impacts of the orders or of mitigation strategies to address those impacts. The result has been inconsistent, chaotic application (now exacerbated by the two court-ordered stays of the Protecting the Nation order.
People from the six countries who are already in the US are afraid to leave the country because they may not be allowed to re-enter, afraid their visas will not be renewed and yet afraid to remain in the country. International students and workers are unable or reluctant to accept offers of study or employment in the US. Fifty thousand resettlement places for refugees have been lost for 2017 at a time when the need worldwide is at its highest point since the end of the Second World War. Many asylum seekers will likely not make claims for refugee status in the US for fear they will not get a fair hearing; and Muslims, particularly but not exclusively from the six designated countries, feel targeted and fear a sharp upswing in anti-Muslim hate crimes.
How should Canada respond?
The Prime Minister has made strong statements about the benefits of Canadian immigration and refugee policy. Can Canada do more to demonstrate this commitment both domestically and abroad? Here are seven recommendations.
1. Canadian universities, hospitals and employers have indicated their eagerness to assist students, medical professionals, academics and highly skilled workers who may no longer be able or willing to accept offers in the US. The government should expedite visas for those people to come to Canada to study or work.
2. Assurances have been provided that Canadian dual nationals and permanent residents from the named countries will not be negatively affected by the Protecting the Nation There have, however, been instances of people being turned back from the US border, and there is a lack of clarity about how the case-by-case reviews for entry into the US will be implemented for Canadian permanent residents who are citizens of the six designated countries. Developments should be monitored closely to determine how to support our citizens and permanent residents
3. Canada should carefully review and decline any new information-sharing requests by the US that put innocent people at risk.
4. While Canada cannot compensate entirely — nor should it — for the impact of the temporary halt to the US resettlement program and the reduction in resettlement spaces, Canada should increase the levels for resettled refugees to be admitted from around the world in 2017 above the current target of 25,000. (We resettled 46,000 in 2016.) Within that higher target, Canada should take these measures:
- Increase the Government-Assisted Refugee Program allotment to fast-track entry for refugees considered a priority by the UNHCR, who have already been vetted by the US but who are on hold because of the reduction in US resettlement spaces and the US halt on their travel. We have the capacity, given the expansion of the settlement sector to respond to the influx of Syrian refugees, and there would be no further screening costs.
- Increase the allocation for privately sponsored refugees (both for Sponsorship Agreement Holders and Groups of Five) to expedite applications for refugees from the six countries named in the executive order. Groups ready and willing to sponsor refugees are currently being turned away because the targets for 2017 have already been met.
- Expedite the applications of Syrian refugees that are currently being processed by Canadian officials. Processing times have increased significantly as a result of the lower annual targets and reduced resources.
5. Canada should work with the UNHCR and with other countries to encourage them to admit more refugees and support their efforts. Several countries have already asked Canada for help in designing private refugee sponsorship programs.
6. All levels of government, civil society organizations and all sectors of society should take action to counter Islamophobia and anti-Muslim hate crimes in Canada.
7. The most controversial policy question is whether to suspend the Safe Third Country Agreement. Arguments have been made on both sides of the debate. The Canadian government asserts that the US asylum system meets international standards, and that the revised Protecting the Nation order specifically states that nothing in it “shall be construed to limit the ability of an individual to seek asylum.” The government has redeployed resources to the RCMP, the Canada Border Services Agency and border communities to deal with the people crossing the border into Canada in an irregular way, in manageable numbers so far. It is taking a wait-and-see approach while closely monitoring the situation.
However, there are legitimate reasons to suspend the STCA for 90 days — and sooner would be better than later. A temporary suspension, contemplated by the terms of the agreement itself, would allow time to review what has happened at our borders, the implementation of the executive orders, their impact on the US asylum system and whether the protections required by the Refugee Convention are being upheld.
Suspension of the STCA would require asylum seekers to enter at official ports of entry for regular processing of their claims. Enhanced resources at the border and at the Immigration and Refugee Board would be required to ensure that any increase in asylum claims does not produce further backlogs — that genuine refugees can move on to stability and security in Canada as fast as possible while ensuring that those who lack valid claims are identified for removal.
Suspension would remove the incentive for irregular entry, while orderly and controlled refugee processing at official crossings would relieve the pressure on our border communities; maintain the confidence of the Canadian public in the integrity and security of our borders, as well as our immigration and refugee processes; and reduce the health and safety risks for asylum seekers.
These are very early days, and the full impact of the executive orders is yet to be determined. Although the President’s intent has been clear since the beginning of the election campaign, any observer of public policy knows that the devil is in the implementation details, and these orders are all off to a shaky start. There is no question that Canada and Canadians will continue to be significantly affected by the actions of our American neighbours. What is important for the Canadian government now is to monitor the implementation and impact of these orders vigorously, to be ready to respond to a variety of scenarios, but to also take proactive steps in keeping with our Canadian values and responsibilities, domestically, in North America and in the world.
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