U.S. and Canada Expand ‘Safe Third Country’ Asylum Agreement to Apply to Illegal Migrants

It really only benefits Canada, but perhaps Washington could learn about border security from Ottawa

By Andrew R. Arthur on March 28, 2023

Canada is unique in that it’s the only country with which the United States currently shares a safe third country agreement, the “Canada-U.S. Safe Third Country Agreement” (STCA), in effect since December 2004. Under the STCA, subject to exceptions, an asylum claim by a third-country alien arriving at a Canadian port of entry from the United States will be denied unless the alien already sought and was denied asylum in the United States (and vice-versa). Well, that used to be the rule, because starting on March 25, the STCA now bars asylum claims by aliens who cross illegally, too. That amendment really only benefits Canada, and it’s a tacit admission by the Biden administration that its Southwestern border policies are putting a strain on our neighbor to the north.

“The World’s Longest Undefended Border”. The Northern border is massive, stretching 5,525 miles and separating seven Canadian provinces (New Brunswick, Québec, Ontario, Manitoba, Saskatchewan, Alberta, and British Columbia) and one territory (Yukon) from 13 U.S. states (Maine, New Hampshire, Vermont, New York, Pennsylvania, Ohio, Michigan, Minnesota, North Dakota, Montana, Idaho, Washington, and Alaska).

It’s referred to as the “world’s longest undefended border” for good reason, particularly when it comes to immigration. As the Canadian government notes:

It is estimated that around 400,000 people crossed the Canada-United States border every day (pre-pandemic) and that there are about 800,000 Canadian citizens living in the United States. There are many Canadian First Nations residents and U.S. Native American Tribes whose culture spans the border.

Under the aegis of the December 2011 U.S.-Canadian bilateral “Beyond the Border Plan”, the two countries share biographic and biometric information for visa applicants, as well as “no-fly” lists, and engage in other mutually advantageous immigration-related endeavors.

Lucky Canada. “Undefended” or not, of all the countries in the world that aren’t island nations, Canada is likely the best physically situated to control its borders and enforce its immigration laws. As the Council on Foreign Relations recently explained:

Canada’s geography — bordered by three oceans and the United States, which is itself a magnet for immigrants — has helped Ottawa limit flows of undocumented people. Its highly regulated immigration system, including some of the world’s strictest visitor-visa requirements, is designed to further curb this phenomenon.

That said, while Canada is technically a “kingdom” (it’s a constitutional monarchy, with King Charles III as its head of state), it’s no “hermit kingdom” along the lines of North Korea. The country is very open to immigration (perhaps to its detriment, as my colleague Todd Bensman recently explained), but it leverages its geographical advantage to ensure immigrants to the country come legally and on its terms.

Trudeau vs. Biden on the Border. Needless to say, in this regard the government of current Canadian Prime Minister Justin Trudeau is very different from the administration of his American counterpart, President Joe Biden — the first president in history to reject the deterrence of illegal migrants as a border policy.

Nowhere was this clearer than in an exchange between DHS Secretary Alejandro Mayorkas and host Bret Baier on the May 1, 2022, edition of Fox News Sunday. Baier asked Mayorkas: “Is it the objective of the Biden administration to reduce, sharply reduce, the total number of illegal immigrants coming across the southern border? Is that the objective?”

To which Mayorkas replied: “It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways to individuals to be able to access our legal system.”

By “pathways ... to access our legal system”, Mayorkas means to “apply for asylum”, and in fact the Biden administration treats nearly all illegal entrants as “asylum seekers”, regardless of the strength of their claims or even whether they come seeking asylum at all.

In line with the administration’s shift from reducing the total number illegal immigrants coming across the border to providing all migrants with “safe, orderly, and legal pathways ... to access our legal system”, the president has largely abandoned the primary tools Congress gave the executive branch to deter illegal entrants — detention and prosecution.

Illegal entry is both a civil violation (subjecting the offender to removal) and a criminal offense, in the latter case punishable as a misdemeanor carrying a sentence of up to six-months and a fine for the first offense and a felony subject to up to two years’ imprisonment and a fine for subsequent offenses under section 275 of the Immigration and Nationality Act (INA).

Criminal prosecutions under this provision peaked in 2018 and 2019 under the Trump administration and then plummeted with the onset of the Covid-19 pandemic, which limited available detention space. Even as illegal entries surged under the Biden administration and pandemic-related restrictions on detention have eased, however, the number of prosecutions for improper entry have remained low.

The same is true of the number of illegal migrants who have been detained after encounter by DHS under the Biden administration.

Since President Biden took office, Border Patrol at the Southwest border has set new yearly records for migrant apprehensions, first in FY 2021, as agents apprehended nearly 1.6 million illegal migrants, and again in FY 2022, as apprehensions exceeded 2.2 million.

Despite that historically unprecedented surge in illegal migrants, however, President Biden asked Congress to cut the number of daily beds DHS has available for immigration detainees, to 25,000 from 34,000, in his FY 2023 budget request.

Instead of detaining those illegal migrants — as Congress has mandated — the Biden administration has released an estimated 1.8 million of them into the United States since taking office.

In his March 8 opinion in Florida v. U.S., a challenge by the state of Florida to the administration’s migrant release policies, federal district court Judge T. Kent Wetherell II concluded that the Biden migrant release policies have encouraged increasing numbers of migrants to enter the United States illegally:

Collectively, [the Biden administration’s migrant release policies] were akin to posting a flashing “Come In, We’re Open” sign on the southern border. The unprecedented “surge” of aliens that started arriving at the Southwest Border almost immediately after President Biden took office and that has continued unabated over the past two years was a predictable consequence of these actions. Indeed, [U.S. Border Patrol Chief Raul Ortiz] credibly testified based on his experience that there have been increases in migration “when there are no consequences” and migrant populations believe they will be released into the country.

Consequently, Border Patrol agents at the Southwest border are increasingly too overwhelmed apprehending, transporting, processing, caring for, and — all too often — releasing illegal migrants at the Southwest border to perform their other duties, such as keeping terrorists and drugs out of the United States.

That has prompted Border Patrol to reassign hundreds of agents from the Northern border to assist their colleagues at the Mexican border, leaving the Northern border increasingly understaffed and undefended. That enforcement void at the Northern border has been exploited by migrant, gun, and drug smugglers.

Tens of thousands of migrants released by the Biden administration have utilized the assistance of such criminals to cross into Canada illegally, drawn by the fairly generous benefits it offers to asylum seekers:

Once an individual has been determined to be eligible to make a claim in Canada, as a refugee claimant they may have access to social assistance, education, health services, emergency housing and legal aid while a decision is pending on their claim. In addition, most individuals found to be eligible to make a refugee claim can apply for a work permit once they have undergone a medical examination. It does not matter if the claim was made at the border or at an inland office.

Roxham Road. Their entry has created a crisis for the federal and provincial governments in Canada, the flashpoint of which has been an unauthorized crossing point on the border between the state of New York and the Montérégie region of Québec (just south of Montreal) known as “Roxham Road”. As CBC News reported on February 25:

Quebec Premier François Legault recently wrote a letter to Prime Minister Justin Trudeau asking him to close Roxham Road to asylum-seekers. Thousands of them have crossed into Canada from the United States at Roxham in recent years.

Legault claimed that the influx of people waiting to have their claims heard has put heavy pressure on the province's public services. In a similar letter published Tuesday in the Globe and Mail, Legault asked other provinces to help.

Conservative Leader Pierre Poilievre also has called on Trudeau to close Roxham Road. Trudeau himself said Wednesday the government is working on shutting down the irregular border crossing. But it's not at all clear how Ottawa could do that.

Keep those last two sentences in mind. Almost 40,000 migrants used the “unofficial” Roxham Road border crossing to enter Canada illegally last year.

The U.S. population (more than 334.5 million) is about 8.4 times the size of Canada’s (39.7 million-plus), and thus 40,000 illegal migrants crossing into Canada at Roxham Road would be equivalent to 336,000 entering the United States, or roughly 72 percent of the total apprehensions (more than 468,000) in the Border Patrol’s Rio Grande Valley sector (one of nine Southwest border sectors) in FY 2022.

As I have already explained, however, the Canadian government does not have the same insouciance about illegal immigration as the Biden administration does.

That’s likely the reason why the number of aliens seeking asylum in the United States (roughly 1.566 million as of December 22 and climbing) — again, a country with a population about 8.4 times larger than its neighbor to the north — is more than 22 times the number of pending asylum applications in Canada (70,223 at the end of 2022).

The Amendment to the Safe Third Country Agreement. Canada has had enough, which brings me to the March 25 amendments to the 2004 STCA.

As the Canadian government explains that amendment to would-be illegal migrants: “If you crossed the border to make an asylum (refugee) claim and don’t meet one of the Agreement’s exceptions, you’ll be returned to the U.S.”

There are a number of legal third-country aliens in Canada who would and have sought to exploit the diminished staffing at the Northern border to enter the United States illegally. One such case that ended in tragedy involved a family of four (including a three-year-old boy) from India who entered Canada legally on nonimmigrant visas at Toronto, Ontario, on January 12, 2022, and shortly thereafter traveled to the prairie province of Manitoba.

They were purportedly transported by smugglers to the U.S. border near the town of Emerson, Man., with a larger group of would-be migrants on a night when the temperatures plummeted below zero. They became separated from the group, and were found frozen to death on January 19, 2022.

Further, as Bensman has explained, Mexican nationals have enjoyed visa-free travel to Canada since 2016, and a significant number have utilized that exception to enter the United States illegally at the Northern border (agents at the U.S.-Canada line apprehended more than 1,600 Mexican nationals in the first five months of FY 2023 alone).

Any of those individuals who claimed asylum upon apprehension would be subject to return under the amendment to the STCA, unless they fell into one of the exceptions under that agreement.

The most significant remaining exception after this amendment pertains to illegal migrants who claim asylum upon apprehension without first applying in Canada with a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew in the United States with asylee, refugee, or other legal status, or who is applying for asylum; that alien can seek an exception under the agreement.

It is reasonable to assume that there are many more would-be Mexican migrants coming south across the Northern border who could take advantage of this rather broad exception than there are headed in the other direction, and the same is likely true of nearly all other nationalities.

That said, as the foregoing reveals, Canada has been inundated with third-country migrants who had been first apprehended by U.S. agents at the Southwest border and released into the United States. Thus, this amendment to the STCA significantly benefits Canada, but not the United States.

Justin Trudeau claimed his government was “working on shutting down” irregular border crossings into his country, and he delivered by convincing President Biden to amend their mutual agreement on third-country asylum seekers. Perhaps the Biden administration could learn a lesson from its colleagues in Ottawa.