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UNITED STATES AND CANADA

SAFE THIRD COUNTRY AGREEMENT

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

BORDER SECURITY, AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 16, 2002

Serial No. 111

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

GEORGE W. GEKAS, Pennsylvania, Chairman

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

CHRIS CANNON, Utah, Vice Chair

JEFF FLAKE, Arizona 

J. RANDY FORBES, Virginia 

SHEILA JACKSON LEE, Texas 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

LORA RIES, Counsel 

ART ARTHUR, Full Committee Counsel 

CINDY BLACKSTON, Professional Staff 

HAROLD BOYD, Minority Counsel 

(III)

C O N T E N T S 

OCTOBER 16, 2002

OPENING STATEMENT 

Page 

The Honorable George W. Gekas, a Representative in Congress From the 

State of Pennsylvania, and Chairman, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 1

The Honorable Sheila Jackson Lee, a Representative in Congress From the 

State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 24

WITNESSES 

Ms. Kelly Ryan, Deputy Assistant Secretary, Bureau of Population, Refugees, 

and Migration, Department of State 

Oral Testimony ..................................................................................................... 3

Prepared Statement ............................................................................................. 6

Mr. Joe Langlois, Director, Office of Asylum, Immigration and Naturalization 

Service 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 9

Mr. Mark Krikorian, Executive Director, Center for Immigration Studies 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 13

Mr. Bill Frelick, Director, Refugee Program, Amnesty International USA 

Oral Testimony ..................................................................................................... 16

Prepared Statement ............................................................................................. 18

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress From the State of Texas, and Ranking Member, Subcommittee 

on Immigration, Border Security, and Claims ................................................... 29

Follow-Up Questions of the Honorable Zoe Lofgren ............................................. 31

Prepared Statement of the Lawyers Committee for Human Rights ................... 33

Letter with Attachments from Dan Stein, Executive Director, Federation 

for American Immigration Reform (FAIR) ......................................................... 38

Prepared Statement of the Office of United Nations High Commissioner of 

Refugees (UNHCR) .............................................................................................. 42

Prepared Statement of Bethany Olson for Church World Service Immigration 

and Refugee Program .......................................................................................... 49

Prepared Statement of the Lutheran Immigration and Refugee Service ........... 51

(1)

UNITED STATES AND CANADA 

SAFE THIRD COUNTRY AGREEMENT 

WEDNESDAY, OCTOBER 16, 2002

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 2 p.m., in Room 

2237, Rayburn House Office Building, Hon. George W. Gekas 

[Chairman of the Subcommittee] presiding. 

Mr. GEKAS. The hour of 2 o’clock having arrived and the Chairman being out of breath, we note the absence of a hearing quorum, 

but at least we have maintained our pattern of starting every Committee hearing on time. We will have to recess for two reasons, the 

absence of that quorum, about which I have already made a statement, and the fact that within a short time we will be voting on—

three votes. I ask for the indulgence of the witnesses while we retire to the Chamber for passing voting. 

All the votes we cast will be in your best interest, of course, and 

we will return quickly. 

[Recess.] 

Mr. GEKAS. The Committee will come to order. The Chair will endeavor to conduct a hearing in which the written statements of the 

witnesses will be submitted for the record, as will the opening 

statement of the Chair. 

The record thus made will be submitted to all the Members of 

the Subcommittee for two purposes: One, to apprise it of the fact 

that the witnesses did appear and did submit testimony and, secondly, to accord them the opportunity to submit written interrogatories or questions to the witnesses, the witnesses agreeing thereto. 

And if a follow-up hearing should be required pursuant to their 

requests or their inclination to submit even further questions, we 

will reinvite you to come back and complete the testimony as they 

might see it. 

So at this time we will have the Chair render an opening statement, and to keep it balanced, although I am loathe to do it, I am 

going to read my own statement, because I want it to appear in the 

record as a written open statement. 

On August the 30th, the Safe Third Country Agreement final 

draft text was initialed by our Administration as one point of the 

30 point Ridge-Manley Smart Border Action Plan between the 

United States and Canada. This agreement would allow both counVerDate Jan 17 2002 09:55 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 G:\WORK\IMMIG\101602\82363.000 HJUD1 PsN: 82363
2

tries to manage the flow of individuals seeking to access our respective asylum systems. Under the agreement if the alien seeks 

to travel from the United States to Canada through a land border 

port of entry to apply for asylum in Canada, the alien will generally be sent back to the U.S. to apply for asylum. 

If an alien travels from Canada to the United States for the 

same purposes, the alien must seek asylum in Canada, the first of 

the two countries in which the alien traveled. The intent is to prevent asylum shopping in both the U.S. and Canada, and it is possible between the two countries because both are parties to the protocol relating to the status of refugees. The theory behind the 

agreement is that an alien is safe in either country and should seek 

it in the first country in which the alien lands. 

The agreement is narrowly drafted, and if finalized, it would only 

apply to asylum claims made at land border ports of entry between 

Canada and the United States. It would not apply to aliens traveling through airports or seaports, nor would it apply to aliens who 

cross illegally between the two countries. In addition, the agreement would not apply to aliens who have already entered both 

countries. The agreement is prospective, not retroactive. Several 

exceptions have also been written into the agreement which will 

likely be explained in the testimony that we are about to receive. 

The agreement as initialed would cause the U.S. to take back 

many more aliens for asylum adjudication than Canada would have 

to take back, at least initially. Flight patterns are the biggest cause 

of this. More international flights come to the U.S. than to Canada. 

Proponents of this agreement argue that aliens should apply for 

asylum in the first safe country where they arrive rather than travel through more than one safe country and apply for asylum in 

their country of choice. They believe that a person truly fleeing for 

his life would ask for protection in the first safe country in which 

he arrived. Some advocate the U.S. pursuing similar agreements 

with other safe countries, particularly those in Europe. 

Opposition to the agreement arises from very different organizations for different reasons. Some opponents focus on the uneven 

distribution of travelers between the U.S. and Canada, arguing 

that the U.S. should not agree to knowingly increase our asylum 

numbers when the INS currently is overwhelmed with applications. 

They argue that the INS will not be able to handle thousands of 

additional asylum applications and that enforcing the agreement at 

land ports of entry will encourage more illegal entries and dangerous alien smuggling across the border. 

Other opponents firmly believe that asylum seekers should be 

able to pursue asylum in whichever country an alien chooses. With 

respect to the U.S. and Canada agreement, opponents favor the 

ability of aliens to seek asylum in Canada because of the country’s, 

quote, kinder, end quote, asylum system, including fewer detentions than America’s asylum system. 

These points also fear that the U.S. will pursue similar agreements with other safe countries such as European countries; and 

with the hopes of preventing such future agreements, they oppose 

this first agreement with Canada. This hearing will examine all 

these issues stemming from the draft agreement between our country and Canada. 

3

With that, we will conduct a brief introduction of the panel, and 

then we will launch into their testimony. 

We begin with the introduction of Kelly Ryan, Deputy Assistant 

Secretary for the Bureau of Population Refugees and Migration at 

the Department of State. She is responsible for policy development 

and program management of humanitarian assistance for Europe, 

the Newly Independent States and the Americas. Prior to this role, 

she was Chief of the Refugee and Asylum Division in the INS Office of General Counsel. She received her Bachelor of Arts Degree 

at Tulane University, her law degree at Georgetown University and 

her Master of Laws Degree at Cambridge. 

She is joined at the counsel table by Joe Langlois, the Director 

of the Asylum Division at the INS. He has spent over 20 years 

working on refugee and asylum issues. He joined the INS in 1991 

as an asylum officer at the San Francisco Asylum Office before becoming a manager in various asylum offices. He is a graduate of 

Georgetown University. 

With the first two witnesses is No. 3, Mark Krikorian, the Executive Director of the Center for Immigration Studies, a research organization which examines and critiques the impact of immigration 

on the United States. He is highly published and interviewed on 

various immigration issues. Mr. Krikorian holds a Master’s Degree 

from the Fletcher School of Law and Diplomacy and a Bachelor’s 

Degree from Georgetown University. 

The final witness will be Bill Frelick, the Director of Amnesty 

International, the USA’s refugee program. He coordinates the work 

of the Amnesty International USA members working on behalf of 

refugee and asylum seekers in the U.S. and throughout the world. 

Prior to joining Amnesty International, Mr. Frelick was the Director of the U.S. Committee for Refugees. He has traveled to refugee 

sites throughout the world and is widely published. 

As we indicated before, the written statements will be submitted 

in their entirety for the record, and then we will ask each witness 

to try to summarize within 5 minutes, and we will proceed in the 

order of introduction with Ms. Ryan. 

STATEMENT OF KELLY RYAN, DEPUTY ASSISTANT SECRETARY, BUREAU OF POPULATION, REFUGEES, AND MIGRATION, DEPARTMENT OF STATE 

Ms. RYAN. Thank you for the opportunity to meet today to discuss a proposed safe country agreement between the United States 

and Canada covering asylum claims made at our land border. Negotiations on this matter were undertaken at the request of the 

government of Canada and included in a bilateral 30-point border 

action plan negotiated by Governor Ridge and Canadian Deputy 

Prime Minister Manley last December. That overall package is intended to improve border security and facilitate cross-border trade 

for both our countries. As neighbors and as friends, the United 

States and Canada share a common determination to combat terrorism. 

This proposed agreement would alter asylum procedures for certain persons attempting to claim asylum in either Canada or the 

United States. The draft agreement currently under consideration 

by the State Department would allow Canada to return to the U.S., 

4

and vice versa, asylum seekers who make their applications at land 

border ports of entry. 

My colleague Joe Langlois, the Director of the INS Asylum Division, will describe for you in more detail the operational issues associated with potential implementation. 

Canada has had a long-standing interest in concluding such an 

agreement with the U.S. Approximately one-third of the persons 

who apply for asylum in Canada pass through the U.S. first. Negotiations between the two countries intensified between 1995 and 

1997 but were then abandoned. Canada first raised the issue of 

drafting a safe country agreement again after the events of September 11th. 

On December 3rd, 2001, Attorney General John Ashcroft signed 

an accord with senior Canadian officials agreeing to, quote, begin 

discussions on a safe third country exception to the right to apply 

for asylum, end quote. 

The agreement was likewise included in the 30-point action plan 

under the Smart Border Declaration signed later that month by 

Governor Tom Ridge, Director of Homeland Security, and John 

Manley of Canada. 

It is thus important that this agreement be viewed in the context 

of the overall 30-point action plan. The foundation of the plan is 

our countries’ willingness to develop mutual approaches to our 

common security. The safe third agreement is one element of the 

plan, but there are many others. Here are but a few examples of 

the tangible security improvements made with Canada in the past 

10 months. Beginning this month Canada for the first time is requiring advanced information on all international air passengers so 

that the U.S. and Canada can share information on high-risk passengers arriving in either of our countries. 

We have deployed U.S. and Canadian officers to joint passenger 

analytical units. Our two countries have also placed integrated border enforcement teams, IBETs, across our shared border. Those 

teams are composed of U.S. and Canadian Federal, State, provincial and local law enforcement agents. We are deploying an electronic system to share criminal record information such as fingerprints. U.S. and Canadian customs officials are also targeting and 

inspecting shipping containers. 

Finally, there has been much—there has been agreement to seek 

to harmonize our respective visa regimes. While there is much 

more work to do, the key to this substantial progress has been both 

countries’ willingness to fully implement the entire 30-point plan. 

In negotiating this agreement, we have also sought to learn lessons of others who have developed similar arrangements. We have 

watched our friends in the European Union implement a safe country agreement known as the Dublin Convention. From them we 

know how tremendously complex and potentially problematic it is 

to implement these types of arrangements for bona fide refugees. 

The greatest challenge all agree is determining asylum seeker’s 

travel itinerary before making a claim and hence which country is 

responsible for adjudicating that claim. This has been an enormously difficult issue for the European Union, and in some cases 

has resulted in asylum seekers being shifted from country to counVerDate Jan 17 2002 09:55 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 G:\WORK\IMMIG\101602\82363.000 HJUD1 PsN: 82363
5

try because it cannot be established with clarity what their 

itinerary had been. 

We would not want the U.S. to be drawn into resource-intensive 

debates with our counterparts in the government of Canada over 

whether an applicant did or did not transit the United States en 

route to Canada. The proposal under consideration would be limited to land border ports of entry, because only there it is incontrovertible that the person was physically present in one of our two 

countries before applying for asylum in the other. 

Claims made in the interior of either country at water crossings, 

airports, or by asylum seekers interdicted by crossing illegally 

would not be covered. This is because of the highly problematic 

issue of determining with certainty the last country where the asylum seeker was present, and therefore, which country was responsible for hearing a claim. 

Also in contrast to the EU’s approach, this proposal would not attempt to substantively harmonize the U.S. and Canadian asylum 

systems. The U.S. and Canadian approaches to asylum are obviously not exactly the same. Our systems are nonetheless two of the 

world’s most generous and are both fully in keeping with international protection standards. 

If that is the case, if we are both equally generous, then why do 

refugees transit the U.S. to apply for asylum in Canada? The vast 

majority of asylum seekers and migrants who make it to the territory of the U.S. Want to stay here, not head north, so why not this 

group? 

There are several reasons. Some are undoubtedly attracted by 

Canadian social welfare benefits. Others may be seeking to file a 

second application after having an affirmative claim rejected in the 

U.S., although this does not appear to be a widespread phenomenon. Many of these asylum seekers, we believe, have strong 

family, community, kinship or linguistic ties to Canada. 

Keeping humanitarian concerns in mind, the U.S. obtained in 

this proposed agreement a generous exemption for family members. 

Mr. Langlois will discuss how this would work in practice. This is 

undeniably a difficult issue. Of course there will still be many persons with ties to Canada and none to the U.S. who would be limited to claiming asylum here under this proposal. 

As is our practice, we have been in consultation with your offices, 

nongovernmental organizations, interested members of the public 

and the United Nations High Commissioner for Refugees to discuss 

the safe country proposal. In July, we published a notice of a public 

meeting and invited comment on the draft text. I note that the UN 

High Commissioner for Refugees does not object in principle to safe 

third country agreements. For the proposal under consideration by 

the U.S. and Canada, issues of practical interest to UNHCR include whether an asylum seeker will have the right to a meaningful appeal of a decision to be returned to either the U.S. or Canada. 

Properly crafted, safe country agreements are fully consistent 

with refugee protection obligations under the 1951 Refugee Convention and the 1967 Protocol. In the case of the draft agreement 

with Canada, the Convention’s article 33 prohibition on 

refoulement is clearly observed. Refugees would not be returned to 

their country of origin or a third country until they have had their 

6

claim adjudicated by either the U.S. or Canada. That is a firm commitment. 

In addition, I would note that the U.S. has no intention to expand this bilateral agreement to include a third country. 

Finally, I want to emphasize that we have considered carefully 

how we would implement such an arrangement on the U.S. side of 

the border and its implications for asylum seekers. The U.S. is serious about its commitment to protecting refugees. We are fully confident that the U.S. would have a fair process for implementing 

this agreement. 

I am pleased to have had the opportunity to report the status of 

this proposal to you and would take any questions you have regarding this proposal. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Ryan follows:.]

PREPARED STATEMENT OF KELLY RYAN

Thank you for the opportunity to meet today to discuss a proposed ‘‘Safe Country’’

agreement between the United States and Canada covering asylum claims made at 

our land border. Negotiations on this matter were undertaken at the request of the 

Government of Canada and included in the bilateral 30-point border action plan negotiated by Governor Ridge and Canadian Deputy Prime Minister Manley last December. That overall package is intended to improve border security and facilitate 

cross-border trade for both our countries. As neighbors, and as friends, the United 

States and Canada share a common determination to combat terrorism. 

This proposed agreement would alter asylum procedures for certain persons attempting to claim asylum in either Canada or the United States. The draft agreement, currently under consideration by the State Department, would allow Canada 

to return to the United States (and vice-versa) asylum seekers who make their applications at land border ports of entry. My colleague, Joseph Langlois, the Director 

of the INS Asylum Division, will describe for you in more detail the operational 

issues associated with potential implementation. 

Canada has had a longstanding interest in concluding such an agreement with 

the United States; approximately one-third of the persons who apply for asylum in 

Canada pass through the United States first. Negotiations between the two countries intensified between 1995–97, but were then abandoned. Canada raised the 

issue of drafting a safe country agreement again after the events of September 11th. 

On December 3, 2001, Attorney General John Ashcroft signed an accord with Senior Canadian officials, agreeing ‘‘to begin discussions on a safe third country exception to the right to apply for asylum.’’ The agreement was likewise included in a 

30-point Action Plan under the Smart Border Declaration signed later that month 

by Governor Tom Ridge, Director of Homeland Security, and Deputy Prime Minister 

John Manley of Canada. 

It is thus important that this Agreement be viewed in the context of the overall 

30-point Action Plan. The foundation of the Plan is our countries’ willingness to develop mutual approaches to our common security. The safe third agreement is one 

of the elements of the Plan, but there are many others. Here are but a few of the 

examples of tangible security improvements made with Canada in the past ten 

months. Beginning this month, Canada for the first time is requiring advanced information on all international air passengers so that the U.S. and Canada can share 

information on high-risk passengers arriving in either of our two countries. We have 

deployed U.S. and Canadian officers to Joint Passenger Analytical Units. Our two 

countries have also placed Integrated Border Enforcement Teams (IBETs) across our 

shared border. These teams are composed of U.S. and Canadian federal, state, provincial, and local law enforcement agents. We are deploying an electronic system to 

share criminal records information such as fingerprints. U.S. and Canadian customs 

officers are also targeting and inspecting shipping containers. Finally, there has also 

been agreement to seek to harmonize our respective visa regimes. While there is 

much more work to do, the key to this substantial progress has been both countries’

willingness to fully implement the entire 30-point plan. 

In negotiating this agreement, we have also sought to learn the lessons of others 

who have developed similar arrangements. We have watched our friends in the European Union implement a safe country agreement known as the ‘‘Dublin ConvenVerDate Jan 17 2002 09:55 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\101602\82363.000 HJUD1 PsN: 82363
7

tion.’’ From them, we know how tremendously complex, and potentially problematic, 

it is to implement these types of arrangements for bona fide refugees. The greatest 

challenge, all agree, is determining an asylum seeker’s travel itinerary before making a claim, and hence, which country is responsible for adjudicating that claim. 

This has been an enormously difficult issue for the European Union, and in some 

cases has resulted in asylum seekers being shifted from country to country because 

it cannot be established with clarity what their itinerary has been. 

We would not want the United States to be drawn into resource-intensive debates 

with our counterparts in the Government of Canada over whether an applicant did, 

or did not, transit the United States en route to Canada. The proposal under consideration would be limited to land border ports of entry because only there is it incontrovertible that the person was physically present in one of our two countries before 

applying for asylum in the other. Claims made in the interior of either country, at 

water crossings, airports, or by asylum seekers interdicted while crossing illegally, 

would not be covered. This is because of the highly problematic issue of determining 

with certainty the last country where the asylum seeker was present, and therefore, 

which country is responsible for hearing his or her claim. 

Also in contrast to the EU’s approach, this proposal would not attempt to substantively harmonize the U.S. and Canadian asylum systems. The U.S. and Canadian approaches to asylum are obviously not exactly the same. Our systems are, 

nonetheless, two of the world’s most generous and are both fully in keeping with 

international protection standards. 

If that is the case, if we are both equally generous, then why do refugees transit 

the U.S. to apply for asylum in Canada? The vast majority of asylum seekers and 

migrants who make it to the territory of the United States want to stay here, not 

head north. So why not this group? 

There are several reasons. Some are undoubtedly attracted by Canadian social 

welfare benefits. Others may be seeking to file a second application after having an 

affirmative asylum claim rejected in the United States, although this does not appear to be a widespread phenomenon. Many of these asylum seekers, we believe, 

have strong family, community, kinship, or linguistic ties to Canada. 

Keeping humanitarian concerns in mind, the United States obtained in the proposed agreement a generous exemption for family members; Mr. Langlois will discuss how this would work in practice. This is undeniably a difficult issue. Of course, 

there will still be many persons with ties to Canada—and none to the United 

States—who would be limited to claiming asylum here under this proposal. 

As is our practice, we have been in consultation with your offices, non-governmental organizations (NGOs), interested members of the public, and the United Nations High Commissioner for Refugees (UNHCR) to discuss the safe country proposals. In July, we published a notice of a public meeting and invited comment on 

the draft. I note that the UN High Commissioner for Refugees does not object—in 

principle—to safe third country agreements. For the proposal under consideration 

by the United States and Canada, issues of practical interest to UNHCR include 

whether an asylum seeker will have the right to a meaningful appeal of a decision 

to be returned to either the United States or Canada. 

Properly crafted, safe country agreements are fully consistent with refugee protection obligations under the 1951 Refugee Convention and the 1967 Protocol. In the 

case of the draft agreement with Canada, the Convention’s Article 33 prohibition on 

refoulement is clearly observed; refugees would not be returned to their country of 

origin, or a third country, until they have had their claim adjudicated by either the 

United States or Canada—that is a firm commitment. In addition, I would note that 

the United States has no intention to expand this bilateral agreement to include a 

third country. 

Finally, I want to emphasize that we have considered carefully how we would implement such an arrangement on the U.S. side of the border and its implication for 

asylum seekers. The United States is serious about its commitment to protecting 

refugees. We are fully confident that the United States would have a fair process 

for implementing this agreement. 

I am pleased to have the opportunity to report the status of this proposal to you 

and would take any questions you have regarding this proposal. 

Thank you, Mr. Chairman.

Mr. GEKAS. We thank you and we turn to Mr. Langlois. 

8

STATEMENT OF JOE LANGLOIS, DIRECTOR, OFFICE OF 

ASYLUM, IMMIGRATION AND NATURALIZATION SERVICE 

Mr. LANGLOIS. Mr. Chairman, I thank you for the opportunity to 

discuss the proposed ‘‘safe third country’’ agreement between the 

United States and Canada. Consistent with the statutory authority 

that Congress put in place a half decade ago, the proposed agreement is founded on the premise that there can appropriately be 

limits on the ability of an asylum seeker to choose a country of refuge, so long as that asylum seeker has a full and fair opportunity 

to present a claim for protection and to receive asylum if he or she 

is a refugee. 

In outlining for you how the proposed agreement would operate, 

I would like to emphasize four key points about the proposed agreement. First, the United States and Canada each have asylum systems that are among the best in the world. Second, the proposed 

agreement has been constructed carefully to apply to individuals 

where it is clear that the individual is, in fact, arriving from the 

other country and to ensure that no asylum seeker would be returned home without first having the claim decided, either in Canada or the United States. 

Mr. GEKAS. Would you please move the microphone closer to 

yourself, whichever one you want to use? 

Mr. LANGLOIS. Third, the proposed agreement has a broad family 

unity exception, so that an asylum seeker with family in one of the 

two countries may join those family members to pursue the asylum 

claim. 

Fourth, the Government has engaged in an open process developing the proposed agreement, consulting at various points with 

Congressional staff, the staff of the United Nations High Commissioner for Refugees and with representatives of nongovernment organizations. 

Under the proposed agreement, the United States and Canada 

would return asylum seekers arriving at land border ports of entry 

to the ‘‘country of last presence’’ for the determination of a ‘‘refugee 

status claim,’’ unless one of the exceptions listed in the proposed 

agreement applies. 

The proposed agreement also addresses those who seek protection while being removed from either Canada or the United States 

in transiting through the other country. We decided to limit the 

proposed agreement to individuals arriving at our shared land border ports of entry or being removed through Canada or the United 

States, because these are the only places where it is incontrovertible that the person was present in the other country. 

This limitation ensures that adjudications under the proposed 

agreement will be as simple and as speedy as possible. It avoids 

prolonged determination of an asylum seeker’s itinerary which in 

some cases may be impossible to ascertain with a degree of certainty and in other cases may be as complex as the determination 

of the individual’s protection. By limiting the proposed agreement 

in this way, we also avoid conflicts with the government of Canada 

over whether an individual did or did not transit through the 

United States en route to Canada or vice versa. 

In addition to making the proposed agreement simple and 

straightforward with respect to whom it applies to, we made it 

9

clear that each individual’s protection concerns must be heard. The 

proposed agreement specifically requires that an asylum seeker returned to the United States or Canada under this agreement will 

not be removed to another country without an adjudication of the 

asylum claim. 

The proposed agreement contains a generous exemption for family members, such that asylum seekers with spouses, sons, daughters, parents, legal guardians, siblings, grandparents, grandchildren, aunts, uncles, nieces and nephews will be allowed to reunite with family members in either the United States or Canada, 

as long as the relative has lawful status, other than as a visitor, 

or has a pending asylum claim in that country. 

The range of family members who may qualify as anchor relatives is far broader than those recognized under other provisions 

of immigration law by including grandparents, grandchildren, 

aunts, uncles, nieces and nephews. 

The proposed agreement also contains exceptions for unaccompanied minors and legal entrants who have a validly issued visa 

by the receiving party or are not required to obtain a visa. 

Upon adoption of the agreement, the INS will implement its obligations under the agreement through the normal rulemaking process. The INS will begin with publication of a proposed rule, accept 

public comments for a period of at least 30 days, analyze those 

comments, and prepare a final rule for publication. 

After the appropriate clearance process, the final rule will be 

published, with implementation commencing 30 days thereafter. 

Implementation in this prescribed, transparent manner will minimize uncertainty and anxiety among affected persons in the border 

communities. 

This concludes my testimony, and I look forward to responding 

to any questions you may have. 

[The prepared statement of Mr. Langlois follows:]

PREPARED STATEMENT OF JOSEPH E. LANGLOIS

Mr. Chairman and Members of the Committee: 

I thank you for the opportunity to discuss the proposed ‘‘safe third country’’ agreement between the United States and Canada. This proposed agreement would allocate responsibility between the United States and Canada for processing claims of 

certain asylum-seekers, enhancing the two nations’ ability to manage, in an orderly 

fashion, asylum claims brought by persons crossing our common border. The proposed agreement would cover asylum-seekers arriving at ports of entry on the land 

border between the United States and Canada. With certain important exceptions, 

these persons will be required to present any asylum claim to the country from 

which they came to the port of entry, rather than the country they are next seeking 

to enter. That is, an asylum-seeker must seek asylum in Canada, if seeking to enter 

the United States from Canada at a land border port of entry, or in the United 

States, if seeking to enter Canada from the United States, unless an exception applies. Consistent with the statutory authority that Congress put in place a half decade ago, the proposed agreement is founded on the premise that there can appropriately be limits on the ability of an asylum-seeker to choose a country of refuge, 

so long as that asylum-seeker has a full and fair opportunity to present a claim for 

protection, and to receive asylum if he or she is a refugee. 

On December 3, 2001, Attorney General John Ashcroft signed an accord with then 

Minister of Citizenship and Immigration Canada, Elinor Caplan, and the Solicitor 

General of Canada, Lawrence MacAuley agreeing ‘‘to begin discussions on a safe 

third country exception to the right to apply for asylum. Such an arrangement 

would limit the access of asylum-seekers, under appropriate circumstances, to the 

system of only one of the two countries.’’ The agreement became a critical element 

of the 30-point Action Plan under the Smart Border Declaration signed by Governor 

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Tom Ridge, Director of Homeland Security, and Deputy Foreign Minister John 

Manley of Canada on December 12, 2001. This blueprint action plan has four pillars: the secure flow of people; the secure flow of goods; secure infrastructure; and 

information sharing. This safe third country agreement has become a critical element of realizing our broader goals to ensure a secure flow of people and, therefore, 

must be viewed in the context of the mutually beneficial 30-point Action Plan and 

related measures taken by Canada and the United States. 

In outlining for you how the proposed agreement would operate, I would like to 

emphasize four key points about the proposed agreement. First, the United States 

and Canada each have asylum systems that are among the best in the world. Second, the proposed agreement has been constructed carefully to apply to individuals 

where it is clear that the individual is arriving from the other country and to ensure 

that no asylum-seeker would be returned home without first having the claim decided in one of those two systems. Third, the proposed agreement has a broad family 

unity exception, so that an asylum-seeker with family in one of the two countries 

may join those family members to pursue the asylum claim, even if the agreement 

would otherwise call for return to the other country. Fourth, the government has 

engaged in an extraordinarily open process developing the proposed agreement, consulting at various points with congressional staff, the staff of the United Nations 

High Commissioner for Refugees, and with representatives of non-government organizations. 

Under the proposed agreement, the U.S. and Canada would return asylum-seekers arriving at land border ports of entry to the ‘‘country of last presence’’ for the 

determination of a ‘‘refugee status claim,’’ unless one of the exceptions listed in the 

proposed agreement applies. In addition to asylum-seekers arriving at Canada-U.S. 

land border ports-of-entry, the proposed agreement addresses those who seek protection while being removed from either Canada or the United States and transiting 

through the other country. A person being removed from the United States who is 

transiting Canada when he or she requests protection shall be permitted onward 

movement to the country to which he or she is being removed, if the protection 

claim was rejected by the United States prior to removal. If the claim was not adjudicated by the United States, the person shall be returned to the United States to 

have the protection claim examined in accordance with U.S. immigration law. 

We decided to limit the proposed agreement to individuals arriving at our shared 

land border ports of entry or being removed through Canada or the United States, 

because these are the only places where it is incontrovertible that the person was 

present in the other country. This limitation ensures that adjudications under the 

proposed agreement will be as simple and speedy as possible. It avoids prolonged 

determinations of an asylum-seeker’s itinerary, which in some cases, may be impossible to ascertain with a degree of certainty and, in other cases may be as complex 

as the determination of the individual’s protection need. By limiting the proposed 

agreement in this way, we also avoid conflicts with the government of Canada over 

whether an individual did or did not transit through the United States en route to 

Canada or vice versa. 

In addition to making the proposed agreement simple and straightforward with 

respect to whom it applies to, we made it clear that each individual’s protection concerns must be heard. The proposed agreement specifically requires that any asylumseeker returned to the United States or Canada under the proposed agreement will 

not be removed to another country without an adjudication of the asylum claim. 

This avoids placing refugees in a situation where they are bounced from one country 

to another with no country taking responsibility for assessing the refugee claim—

the so called ‘‘refugee-in-orbit’’ problem that has arisen under the Dublin Convention in Europe. 

With the principle of family unity in mind, we sought and obtained in the proposed agreement a generous exemption for family members, such that asylum-seekers with spouses, sons, daughters, parents, legal guardians, siblings, grandparents, 

grandchildren, aunts, uncles, nieces and nephews will be allowed to reunite with 

family members in either the United States or Canada, overriding the obligation of 

the ‘‘country of last presence’’ to take the asylum seeker back. This exception applies 

as long as the anchor relative has lawful status, other than as a visitor, or has a 

pending asylum claim in the country where the person is seeking asylum. The range 

of family members who may qualify as anchor relatives is far broader than those 

recognized under other provisions of immigration law by including grandparents, 

grandchildren, siblings, aunts, uncles, nieces, and nephews. 

The proposed agreement also contains exceptions for unaccompanied minors and 

legal entrants who have a validly issued visa by the receiving party or are not required to obtain a visa. Importantly, the proposed agreement contains a provision 

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that allows the United States and Canada the discretion to exempt an asylum-seeker from the agreement based on public interest considerations. 

Finally, I would like to share with you the consultations we engaged in when developing the proposed agreement and certain changes to the draft resulting from 

those consultations. After agreeing to an initial draft in June 2002, both the U.S. 

and Canada met with the United Nations High Commissioner for Refugees and 

their respective non-governmental organizations (‘‘NGOs’’) to solicit comments on 

the draft. INS and Department of State officials also met with Congressional staff, 

providing background information on the proposed agreement. Members of the public were offered an opportunity to address the terms and implications of the proposed safe third country agreement at two meetings held at INS headquarters. The 

first, in January 2002, was attended by the INS Office of the General Counsel, INS 

Office of International Affairs-Asylum Division, and NGOs. The second, in August 

2002, was open to the public and was announced by publication of a meeting notice 

in the Federal Register on July 12, 2002. The June 2002 version of the proposed 

agreement also was made available to the public on the Service’s Website prior to 

the August meeting. At that meeting, the Department of State’s Office of Population, Refugees and Migration joined INS officials in addressing the public’s questions and concerns. 

Many of the NGO and UNHCR comments have mirrored the principles with 

which the United States has negotiated the proposed agreement: (1) the agreement 

must guarantee that persons subject to it would have their refugee claims heard in 

one of the two countries; (2) the agreement should not act to separate families; and 

(3) it would be applied only in circumstances with limited factual issues, i.e., at land 

border ports of entry where it is clear that the person is arriving directly from the 

other country. After considering the comments received, we resumed negotiations 

with Canada, finding ways to address the public comments in ways that enhance 

our adherence to these principles. 

Several NGOs urged us to include a transit exception for persons who entered one 

country simply for the purpose of proceeding to the other to seek asylum there. 

After considering this suggestion, both the U.S. and Canada agreed that such an 

exception should not be included. The main reason is that a transit exception would 

require a significantly more complex process for determining whether an individual 

was subject to return under the agreement, which would prolong and complicate the 

determination process to the extent that it could eliminate the benefit of requiring 

these individuals to apply in the country of last presence. 

After carefully considering the public’s concerns, we made changes to the proposed 

agreement to broaden the family unity exception. The final draft abandons a twotier system included in the first draft that would have prevented more distant relatives (siblings, aunts, uncles, nieces and nephews) from acting as anchor relatives 

if they merely have a pending asylum claim. Other changes that were made to the 

draft text include provisions to ensure that asylum information remains confidential 

and to develop a role for the UNHCR to monitor the implementation of the agreement. 

With these changes that followed consultations with House and Senate staffers, 

the UNHCR and interested NGOs, the United States and Canada negotiators initialed a proposed agreement on August 30, 2002. 

Upon adoption of the agreement, the INS will implement its obligations under the 

agreement through the normal rulemaking process. The INS will begin with publication of a proposed rule, accept public comments for a period of at least thirty days, 

analyze those comments, and prepare a final rule for publication. After the appropriate clearance process, the final rule will be published, with implementation commencing thirty days thereafter. Implementation in this prescribed, transparent 

manner will minimize uncertainty and anxiety among affected persons and border 

communities. 

This concludes my testimony and I look forward to responding to any questions 

that you may have.

Mr. GEKAS. We thank you. We turn to Mr. Krikorian. 

STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, 

CENTER FOR IMMIGRATION STUDIES 

Mr. KRIKORIAN. Thank you, Mr. Chairman. There are two questions regarding this agreement, one of principle and one of practice. 

As Ms. Ryan pointed out, the safe third country agreement is not 

inconsistent with the 1951 Geneva Convention, which says that ilVerDate Jan 17 2002 09:55 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\101602\82363.000 HJUD1 PsN: 82363
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legal aliens coming directly from a country where they are threatened must be allowed to apply for asylum, but it is actually more 

than consistent. In my opinion, it is actually a logically and morally 

necessary part of any asylum system. 

Asylum is analogous to giving a drowning man a berth in your 

lifeboat, and a genuinely desperate man grabs at the first lifeboat 

that comes his way. A person who seeks to pick and choose among 

lifeboats is by definition not seeking immediate protection, but instead seeking immigration. 

Without the safe third country concept any so-called asylum system is really nothing more than an alternate avenue of immigration, and if asylum is just another immigration category, its rationale would disappear. 

Asylum is different from refugee resettlement, even though both 

relate to the same kind of people, people being persecuted or have 

a well-founded fear of persecution, because in refugee resettlement 

our Government chooses specific individuals overseas who fear persecution and brings them to the United States. It is a policy choice 

governed by Congress and the President and thus is an exercise of 

a sovereign state’s plenary power over immigration. 

Asylum, on the other hand, represents a nation’s sacrifice of part 

of its sovereignty over immigration, out of humanitarian concerns, 

in order to offer protection to people, usually illegal aliens who are 

fleeing genuine persecution. It is a kind of humanitarian pardon, 

or even amnesty if you will, for people who have broken the immigration law and have no other reason to be admitted into the country in question. 

If people who could have applied for protection elsewhere are allowed to enter into the asylum system, the curbs on a nation’s sovereignty implicit in asylum can no longer be justified. 

This issue—the logical and moral necessity of including a safe 

third country concept in any asylum system was never an issue 

during the Cold War, because then very few people, the numbers 

of asylum claimants were small, and it was difficult for asylum 

claimants to transit many different countries before they came to 

a Western democracy where they would want to immigrate, as well 

as have protection. 

But with the end of the Cold War, the safe third country issue 

came to the fore. Most notably Germany in 1993 amended its Constitution to incorporate the safe third country concept, because it 

was dealing with an enormous increase in the number of asylum 

claims. 

Now, practically speaking, the draft agreement is in the interest 

of the United States. Now, it is indeed likely, as you have pointed 

out and as others have pointed out, that at least in the short run 

the United States will face a somewhat larger number of asylum 

claimants as a result of this agreement, however narrowly crafted 

the agreement may be. This is because the United States is easier 

to get to, but Canada has much more generous asylum rules. So 

many more people pass through our country on the way to Canada 

than vice versa for asylum. 

But even this likely increase in asylum claims is not an argument, in my opinion, against this agreement because this agreement is best seen as a first step in reaching similar deals with 

13

other safe countries transited by asylum seekers, most notably the 

states of the European Union and perhaps eventually, if institutional change occurs, in Mexico as well. 

Significant numbers of asylum seekers arrive on flights from 

Western Europe to JFK and other airports on the East Coast, either independently or as part of a smuggling operation, and application of the safe third country concept to all asylum claimants 

who pass through Western Europe where they should have applied 

for asylum if they were genuinely seeking protection can reduce 

this flow significantly. 

But we will have no credibility if at some future time a future 

Administration decides to negotiate such agreements with Western 

Europe if we reject this deal with Canada simply because it would 

lead to some modest increase in our asylum caseload. After all, in 

the case of a deal with European countries, it would be they on balance who would have to take back more people, since the asylum 

seeker flow across the Atlantic is mainly westbound. Only by first 

entering into this agreement would we will able to be credible in 

approaching the European Union to negotiate similar agreements. 

And finally, the last reason, practical reason, I think this is important is that the United States has an important security interest in Canada’s applying the safe third country proposal and incorporating it into its own asylum system. According to the Canadian 

equivalent of our asylum, more than 50 terrorist groups have established themselves in Canada, partly because of a laxity of that 

country’s asylum system. Canada first attempted to incorporate the 

safe third country concept in 1988 into its 1988 immigration law, 

but the provision was never implemented, because the main sticking point was whether the United States would be included on the 

list of safe countries. 

Once there is a safe third country agreement with the United 

States, there will be significantly less political resistance within 

Canada to adding European countries to a similar list should Canada’s government think that advisable, and that would make it 

more difficult for terrorist organizations to set up shop in Canada 

in preparation for attacks on the United States. 

That is where I will leave my comments. I will be happy to take 

any questions. 

[The prepared statement of Mr. Krikorian follows:]

PREPARED STATEMENT OF MARK KRIKORIAN

The U.S.-Canada Safe Third Country Agreement, initialed by representatives of 

our two governments in August, sets an important precedent that will defend the 

integrity of our asylum system, improve our country’s ability to control immigration, 

and enhance national security. It should be implemented as soon as possible. 

The agreement, made pursuant to sec. 208(a)(1) of the Immigration and Nationality Act, would allow each country to return asylum claimants who passed through 

the other country without having to adjudicate their asylum claims. In other words, 

an alien would have to claim asylum protection in whichever country he reached 

first, and thus would not be permitted to transit through one country and then 

apply for asylum in the other. 

This is consistent with the 1951 Geneva Convention on the Status of Refugees, 

the international agreement which laid the groundwork for the post-World War II 

refugee system. Article 

31 of the convention implicitly assumes a safe third country system when it says 

‘‘The Contracting States shall not impose penalties, on account of their illegal entry 

or presence, on refugees who, coming directly from a territory where their life or 

14

freedom was threatened in the sense of article 1, enter or are present in their territory without authorization...’’ Note, ‘‘coming DIRECTLY from a territory where 

their life or freedom was threatened,’’ which assumes that the person seeking protection will not pass through other countries which could have offered him protection in order to make his claim in a country he likes better. 

But the safe third country concept is not merely consistent with the Geneva Convention—it is a logically and morally necessary part of any asylum system. Asylum 

is analogous to offering a drowning man a berth in your lifeboat, and a genuinely 

desperate man grabs at the first lifeboat that comes his way. A person who seeks 

to pick and choose among lifeboats is, by definition, not seeking immediate protection. Without the safe third country concept, any so-called ‘‘asylum’’ system is really 

nothing more than an alternate avenue of immigration. 

And if asylum is just another immigration category, its rationale would disappear. 

Asylum is different from refugee resettlement, even though both policies relate to 

aliens who have been persecuted or have a well-founded fear of persecution. In refugee resettlement, our government chooses specific individuals overseas who fear 

persecution and brings them to the United States. The policy choice is made by Congress and the president and is thus an exercise of a sovereign state’s plenary power 

over immigration. 

Asylum, on the other hand, represents a nation’s sacrifice of part of its sovereignty over immigration for humanitarian reasons, in order to offer protection to 

people (usually illegal aliens) who are fleeing genuine persecution. It is a kind of 

humanitarian pardon, or amnesty, for people who have broken the immigration law 

and have no other reason to be admitted into the country. If people who could have 

applied for protection elsewhere are allowed to enter into the asylum system, the 

curbs on a nation’s sovereignty implicit in asylum can no longer be justified. 

The logical and moral necessity of including the safe third country concept in asylum was not an issue during the Cold War, because asylum claimants were few in 

number and in the main came directly from behind the Iron Curtain. Also, the expense of air travel made it difficult for alien smugglers to move their customers 

through intermediate countries before arriving at a developed western democracy, 

where the asylum seekers would find not only protection but also extensive economic opportunities. 

But with the end of the Cold War (and the declining cost of travel), the safe third 

country issue came to the fore. As early as 1990, Sweden returned African and Middle Eastern illegal aliens seeking asylum to Poland, which they had traversed before 

arriving in Sweden. And in 1992, the ministers responsible for immigration in what 

was then the European Community adopted a resolution establishing objective criteria for applying what they termed the ‘‘host third country’’ principle. 

Most notable, though, was Germany’s 1993 amendment to the Basic Law (its constitution) to incorporate the safe third country concept, in response to the fact that 

more than 400,000 illegal aliens claimed asylum in Germany in 1992. Combined 

with agreements with neighboring Poland and the Czech Republic to take back illegal aliens who passed through those countries on their way to Germany, this institutionalized the safe third country concept for the first time. It has since been 

adopted in some form by members of the European Union individually and through 

the Dublin and Schengen agreements. 

And this is not an entirely new idea for the United States. Such an arrangement 

was foreseen in the INS asylum reform regulations that took effect in January 1995 

(the provision permitting safe third country determinations was later codified in the 

Illegal Immigration Reform and Immigrant Responsibility Act of 1996). And in October 1995, a ‘‘Memorandum of Agreement’’ was released outlining a safe third country arrangement between our country and Canada, though negotiations were suspended during the debate over immigration legislation in the 104th Congress, and 

were not resumed. 

In the case at hand, the question is whether this draft agreement with Canada 

is in the interests of the United States. It is indeed likely, as some have observed, 

that in the short run, the United States will face a somewhat larger number of asylum claimants as a result of this agreement. This is because the United States is 

easier to get to (more international flights arrive here than in Canada and we have 

long land border with Mexico), while Canada has much more permissive asylum 

rules. The result is that more people pass through our country on the way to apply 

for asylum protection in Canada than vice versa. 

While we can stipulate that the agreement will result in some increase in asylum 

requests in the United States, the magnitude of such an increase is open to debate. 

Once the option of transiting the United States in order to apply for asylum in Canada is eliminated, some significant number of those whose objective was Canada 

will choose not to come to the U.S. in the first place, opting instead to apply for 

15

asylum in an EU country. We cannot know, ahead of time, how many additional 

asylum claims for the U.S. will be generated by this agreement. 

But even the likely increase in asylum claims is not an argument against this 

agreement. That is because this agreement is best seen as a first step in reaching 

similar deals with other safe countries transited by asylum seekers, notably the 

member states of the European Union. Significant numbers of asylum seekers arrive 

on flights from western Europe to JFK and other East Coast airports, either independently or as part of organized smuggling operations. Application of the safe third 

country concept to all asylum claimants who passed through western Europe— where they should have applied for asylum if they were genuinely seeking protection—would reduce this flow significantly, increase the proportion who had legitimate claims to asylum, and allow generally for a more efficient and expeditious asylum process for those remaining. 

But we will have no credibility in insisting on such agreements with EU nations 

if we reject this deal with Canada simply because it will lead to a modest increase 

in our asylum caseload. After all, in the case of a deal with EU countries, it would 

be they, on balance, who would have to take back more people, since the asylumseeker flow across the Atlantic is mainly westbound. Only by first entering into an 

agreement that would result in an increase, however small, in our own caseload can 

we credibly approach the Europeans with a proposal that would shift back to them 

some of the asylum flow that they have been sending on to us. 

A better-managed asylum system resulting from the incorporation of the safe 

third country principle would also yield security improvements. Six of the 48 foreign-born al Qaeda operatives who committed crimes in the United States over the 

past decade were applicants for asylum at some point, three of them at the time 

they took part in terrorism. One example is Abdel Hakim Tizegha, who took part 

in the 1999 Millennium Plot to blow up Los Angeles International Airport and/or 

Seattle’s landmark Space Needle (See The Open Door: How Militant Islamic Terrorists Entered and Remained in the United States, 1993–2001, by Steven A. Camarota, 

Center for Immigration Studies Paper no. 21, http://www.cis.org/articles/2002/

Paper21/terrorism.html.) Tizegha’s asylum application was rejected in 1997 and the 

appeal was rejected in 1999, after which he moved to Canada and sought asylum 

there. He snuck back across the border in Washington State in 1999. Other terrorists who have exploited our asylum system were Sheikh Omar Abdel Rahman, spiritual inspiration for the 1993 plot to bomb New York landmarks; Ramzi Yousef, 

mastermind of the first World Trade Center attack; and Mir Aimal Kansi, who murdered two CIA employees in 1993. 

In addition to the direct security benefits of a more tightly run asylum system 

applying the safe third country principle, the United States has an important security interest in Canada’s applying the safe third country concept more broadly, especially to Europe. According to the Canada Security Intelligence Service, more than 

50 terrorist groups have established themselves in Canada, due partly to the laxity 

of that country’s asylum system. The Sikh or Tamil terrorists in Canada may be 

of little concern to us, but as James Bissett, former director of Canada’s immigration 

service has pointed out, al Qaeda has also set up shop there and used the country 

as a jumping off point for attacks against the United States. (See ‘‘Canada’s Asylum 

System: A Threat to American Security?,’’ Center for Immigration Studies 

Backgrounder, May 2002, http://www.cis.org/articles/2002/back402.html.) 

For instance, Ahmed Ressam, an asylum seeker from Algeria who had not shown 

up for his Canadian asylum hearing, was apprehended in December 1999 while attempting to enter the United States with a trunk load of explosives in his car as 

part of the Millennium Plot. Ressam was a member of a Montreal cell of the Algerian Armed Islamic Group that has strong ties to Osama bin Laden’s al Qaeda network. Attorney General John Ashcroft has also identified two former Montreal residents on the list of ‘‘most wanted’’ al Qaeda militants. 

Canada first embraced the safe third country concept in its 1988 immigration law, 

but the provision was never implemented. The main sticking point was whether to 

include the United States in the list of safe countries. Many activist groups at the 

time argued that the United States could not be considered a safe country for Central American illegal aliens seeking asylum, but for diplomatic reasons, it would 

have been impossible to present a list of safe countries that did not include the 

United States. The solution was to ignore the provision altogether; in the words of 

the immigration minister at the time, ‘‘I am prepared to proceed with no country 

on the safe third country list.’’

Canada’s new immigration law, which went into effect in June of this year, also 

includes a safe third country provision: ‘‘A claim is ineligible to be referred to the 

Refugee Protection Division if . . . (e) the claimant came directly or indirectly to 

Canada from a country designated by the regulations, other than a country of their 

16

nationality or their former habitual residence.’’ If the past is any guide, once there 

is a safe third country agreement with the United States, there will be less political 

resistance within Canada to adding European nations to the list, should Canada’s 

government think that advisable. This would make it more difficult for Islamist terrorist organizations to set up shop in Canada in preparation for attacks on the 

United States. 

There are compelling reasons for rapid implementation of the U.S.-Canada Safe 

Third Country Agreement. It would, as the draft agreement itself points out, 

‘‘strengthen the integrity’’ of the institution of asylum ‘‘and the public support on 

which it depends.’’ It would serve as a vital first step toward improving management of our asylum system and making it more difficult for terrorists to exploit. And 

its implementation would contribute to Canada’s own efforts to improve North 

American security.

Mr. GEKAS. We thank you, and finally Mr. Frelick. 

STATEMENT OF BILL FRELICK, DIRECTOR, REFUGEE 

PROGRAM, AMNESTY INTERNATIONAL USA 

Mr. FRELICK. Thank you, Mr. Chairman. I appreciate the opportunity to testify today. I think that the first question that needs to 

be asked is what problem is this agreement addressing? Why are 

we signing this agreement in the first place? Is there a flood of asylum seekers coming in from Canada that it seeks to deter in some 

way? No. Clearly, the numbers don’t add up. As the INS has given 

its own estimates, we are talking about maybe 200 people a year 

coming from Canada to the United States to seek asylum, and in 

the other direction last year it was about 15,000 people that went 

from the United States to Canada. And essentially what we are 

doing is telling these 15,000 people who want to apply for asylum 

in Canada that they can’t do that, that they have to apply for asylum here. And we are saying that at a time when we have 60,000 

asylum applicants per year. We have a backlog of over 250,000 asylum cases. We have a backlog of asylee adjustment of about 69,000 

that will have to go into the year 2011 before those adjustments 

can take place, and we are talking about adding these numbers 

into an INS that is in transition. 

The House has already passed a bill that would split the INS between the Department of Homeland Security and the Justice Department. If you think you have backlogs now, if you think you 

have bureaucratic disarray, if you think that the INS is broken, 

certainly this is not the time to be adding to its workload and to 

its backlogs. 

So what is the problem? You mentioned in your opening statement the problem of asylum shopping, but we already heard Ms. 

Ryan from the State Department saying that that is not a widespread problem, and how widespread could it be, after all, among 

200 people that are coming into this country per year? Coming in 

the other direction, if we are concerned about asylum shopping 

going from the United States to Canada, basically in the few cases, 

relatively few cases where this occurs, it is people who all along 

wanted to go to Canada, they were apprehended upon arrival at 

JFK or wherever in the United States and simply lodged an asylum claim as a way of avoiding deportation and being paroled from 

detention, and in that case they proceed in most cases directly up 

to Canada, which is where they wanted to apply for asylum in the 

first place. 

17

Is this a security agreement? In fact, there is nothing in the preamble, there is nothing in the agreement itself that mentions anything about security, and in the agreement, per se, there is nothing 

that any of the Government witnesses have said to indicate that 

there is a security component to this agreement. 

On the other hand, it appears that this agreement would make 

our border more insecure because it does only apply at ports of 

entry, at land ports of entry, and asylum seekers aren’t stupid. Basically if you say it only applies at this one place, you are going 

to be turned back if you go here. They will try to evade those ports 

of entry. 

Under the current system as it now exists we have nongovernmental service providers that help people, assist people. They take 

them for inspection. People are working in an orderly and in a 

legal fashion to apply for asylum in Canada. Under this agreement, 

you could say good-bye to the nonprofit service providers and say 

hello to smugglers and traffickers who will prey upon people and 

tell them I can get you past there, I can help you evade this border 

and I can get you into the Canadian interior. 

So it is likely to cause in fact a more insecure border with greater criminality, in addition to creating a new bureaucracy, increased 

costs, new disputes between Canada and the United States that 

simply don’t exist under the current system. 

There are some exceptions to the agreement, but how are we 

going to adjudicate such exceptions? They are family exceptions. 

How do you determine if this person really is the family member 

that you claim it to be? Are we going to be doing blood tests? What 

kind of documentation do we require from the asylum seekers? For 

unaccompanied minors, how do we determine how old the child 

claims to be? Are we going to have people waiting in detention as 

the Government officials try to determine which country is responsible for examining the claim? 

In fact, it appears that what we have going here, we have had 

several references by the Government officials here to the 30-point 

plan between the United States and Canada. This is but one of 

those 30 points. It appears that what is at work is that refugees 

are being made a bargaining chip. There is really nothing in this 

plan that is in the interest of the United States. There is nothing 

in this plan that is in the interest of refugees, per se. It is basically 

a bargaining chip for some other agreements, and when you look 

at the other 29 points, they seem to be areas of mutual agreement 

between the United States and Canada. So we are not even sure 

what we are getting in a trade. 

There is a side agreement apparently that has to do with resettlement of a certain number of refugees from Guantanamo, but 

again we are in a horse trading mode here, and I think it is really 

an unseemly engagement of our Government to try to use refugees 

in this way. 

I would like to respond very briefly, and I realize my time is up, 

and I refer you to my written testimony, on the questions of how 

this comports with international law. In fact, the executive committee conclusions of the UN High Commissioner for Refugees that 

interpret the Refugee Convention make it very clear that asylum 

should not be denied solely because the person could have applied 

18

for asylum in another place. And the only exception that is mentioned to this where you may request a person to seek asylum in 

another country is where there is a particular connection or close 

link to that country. 

Now, this agreement instead uses the term ‘‘country of last presence,’’ which can be very fleeting, momentary, simply the time it 

takes you to get to the airport up to the Canadian border, that is 

hardly a close connection. That is hardly a close link between the 

two countries. And so I think that we need to look very closely at 

the premise, at the foundation of this agreement, because it is a 

fundamentally flawed premise. 

In a closed system between two countries, you could have a very 

simple, straightforward agreement where the asylum seeker would 

have the choice of which of the two countries he or she wanted to 

apply for asylum. You would give that person a full and fair refugee status determination in the country of their choice. If granted, 

the person would be ineligible to seek asylum in the other country, 

and under the Refugee Convention cessation clause they would 

have no need to. They would have been protected. And if they were 

denied, they would then have a presumption that they were ineligible to be granted asylum in the other country, and they would 

have a very high standard to overcome that presumption. Shall I 

change country conditions since the first adjudication showing that 

there was an unfair adjudication in the first place or some other 

exceptional or extenuating circumstances? 

So I think it could be done much more simply. You wouldn’t have 

to get into trying to decide whether or not the exceptions that are 

set up by the Government are met or not, and I think that it is 

very important for Members of Congress to look at this agreement 

and to see whose interests are served here. It certainly doesn’t 

serve the interest of these 15,000 asylum seekers who are looking 

usually to connect with family, friends, people that speak the same 

language, places where they feel that they would have work authorization while their claims are pending, who would have the 

right to a court-appointed attorney, which they don’t have in this 

country, and to see what benefit there could possibly be to the 

United States of forcing these people who want to apply for asylum 

in Canada to apply for asylum here. 

Thank you very much. 

[The prepared statement of Mr. Frelick follows:]

PREPARED STATEMENT OF BILL FRELICK

Mr. Chairman and members of the Subcommittee, I am pleased and grateful to 

you for inviting my comments on the proposed Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (better 

known as the ‘‘Safe Third Country Agreement’’) between the United States and Canada. This agreement, if signed, will create hardships for asylum-seekers in North 

America, have serious implications for refugee protection worldwide, and likely 

cause a host of unnecessary problems here in the United States. 

Despite promising language in the preamble of the Agreement declaring the U.S. 

and Canadian governments’ commitment to ‘‘uphold asylum as an indispensable instrument of the international protection of refugees,’’ the Agreement not only fails 

to achieve that goal, but actually thwarts the exercise of asylum. This failure is due 

to a fundamental flaw in its foundation: the notion of the ‘‘country of last presence’’

as the normal basis for assessing the responsible party for examining refugee 

claims. The Agreement has other flaws, as well, most of which result from an artificial and complicated system for assigning responsibility that will invariably result 

19

in new bureaucracies, inefficiencies, unnecessary costs, and disputes between the 

U.S. and Canada regarding issues that have not previously been problematic. 

IS THERE A PROBLEM?

The first question that ought to be asked is: Is there a problem? 

Is there a flood of asylum-seekers pouring across the Canadian border? The Immigration and Naturalization Service (INS) itself estimates that no more than 200 persons per year apply for asylum in the United States via Canada. 

The only problem that has even implicitly been identified is the notion sometimes 

referred to as ‘‘forum shopping’’—the idea that a person seeking asylum ought not 

to be allowed to seek asylum in one country after having already been granted or 

denied asylum by another. This could be interpreted from the ‘‘safe third country’’

component of the Smart Border agreement signed by the Canadian Solicitor General 

and Minister of Citizenship and Immigration and the U.S. Attorney General on December 3, 2001, which says that the agreement is intended to ‘‘limit the access of 

asylum seekers, under appropriate circumstances, to the system of only one of the 

two countries.’’

But, are refugee claimants ‘‘forum shopping’’—applying for asylum in both the 

U.S. and Canada to manipulate the system? In the relatively few cases where applications are lodged in both countries, service providers are agreed that such asylumseekers are not usually trying to get ‘‘two bites at the apple.’’ Often, the only recourse for an asylum seeker apprehended in the United States to avoid deportation 

is to file an asylum claim. After establishing a credible fear of persecution, the asylum-seeker may be eligible to be released on bond. After being released from detention, he or she proceeds to Canada, and is reflected as a ‘‘no show’’ or ‘‘absconder’’

in INS statistics. But such persons are not absconders in the sense that they are 

in hiding somewhere in the United States. By ‘‘absconding,’’ they are actually indicating that they are not interested in applying for asylum in both the United States 

and Canada, but want to apply for asylum only in Canada. 

Aside from lack of direct flights from regions of origin (for example, there are almost no direct flights from Latin America to Canada that don’t first pass through 

the United States), there are many reasons why an asylum-seeker might want to 

apply for asylum in Canada rather than the United States (for reasons beyond the 

exceptions, such as family ties, enumerated in the Agreement). Often refugees seek 

existing communities of support that will help them integrate into a new society. 

French speaking refugees from Haiti or Rwanda, for example, might seek out such 

communities in Quebec. Also, claimants may find that one country’s asylum system 

is more receptive to them than the other. The U.S. falls short on a number of minimum standards: prohibiting asylum applicants from working for six months after 

applying for asylum (unlike Canada); not providing them legal assistance (which is 

usually available in Canada); barring asylum-seekers from filing asylum claims if 

they do not file within one year (not required in Canada); and detaining asylumseekers in jails more readily than Canada. The U.S. also generally has a narrower 

interpretation of refugee law than Canada, for example, on gender-based persecution claims, raising the prospect that it might return a claimant to persecution that 

Canada would have protected. 

Does ‘‘forum-shopping’’ occur in the other direction? No evidence has been presented to suggest that there is a problem of any significance involving forum shopping of asylum-seekers denied in Canada and then applying for asylum in the 

United States. More typical of the estimated 200 asylum seekers who enter the 

United States via Canada each year would be the recent case of the young Cubans 

who broke away from a group attending World Youth Day in Toronto and sought 

asylum in Buffalo, New York. All along they wanted to seek asylum in the United 

States, where they have ties to the Cuban-American community, but the only way 

they could escape Cuba was by getting Cuban government permission to visit Canada. Within the context of more than 60,000 asylum claims in the United States 

last year, the number coming from Canada is negligible, and the number of that 

minute fraction who might have previously applied for asylum in Canada is miniscule. 

Does this Agreement address a problem of border security? Despite heightened security concerns generally at our borders, there is no reference whatsoever either 

within the preamble or text of the Agreement or in government spokespersons’ explanations of it, that this Agreement is intended in any way to address security concerns. 

Is there a problem of smuggling asylum-seekers across the U.S.-Canadian border 

that this Agreement would prevent? No. Our northern border is remarkably orderly 

and relatively crime-free, in sharp contrast to the U.S.-Mexico border. Local nonVerDate Jan 17 2002 09:55 Dec 06, 2002 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\101602\82363.000 HJUD1 PsN: 82363
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governmental service providers work in close cooperation with local immigration officials on both sides of the border to encourage and facilitate asylum seekers to 

present themselves at ports of entry for inspection. If anything, because this Agreement only applies at land ports of entry (Article 4.1), it would create incentives for 

evading ports of entry and could foment illegal smuggling and encourage traffickers 

who prey upon desperate refugees. 

Put simply, from the U.S. perspective, there is no problem that this Agreement 

would remedy (and quite a few problems that it would likely cause). 

The Canadian government has a more obvious reason for wanting to conclude this 

agreement. In contrast to the estimated 200 persons per year who apply for asylum 

in the United States after passing through Canada, an estimated 15,000 refugee 

claimants per year—about one-third of Canada’s annual asylum caseload—arrive 

via the United States. 

U.S. policy makers should consider the question: What purpose is served by increasing the U.S. asylum caseload by as many as 15,000 applicants who do not wish 

to apply for asylum in the United States? 

A SIMPLE (AND FAIR) SOLUTION

It would make more sense to allow third country nationals passing through the 

United States who wish to seek asylum in Canada to proceed and not to force them 

to apply for asylum in the country that is not their preferred destination. Here is 

the simple solution:

(1) Let the asylum seeker who enters the United States or Canada choose 

where he or she prefers to lodge his or her refugee claim.

(2) Give the applicant ‘‘a full and fair refugee status determination’’ (language 

from the preamble to the Agreement) in one of the two countries.

(3) If the applicant’s claim were rejected in the country of first refugee status 

adjudication, the applicant would be presumptively ineligible to be granted 

asylum in the other country (though not ineligible to apply).

(4) In order to overcome the presumption of ineligibility, the rejected applicant 

would have to present evidence to a refugee status adjudicator showing 

changed country conditions since the time of the first application or challenge the fairness of the adjudication in the first country, or show other extenuating circumstances that warrant consideration of the merits of the 

claim by the other country.

(5) Persons granted asylum in one country would be ineligible to file asylum 

claims in the other (as under existing law in both the United States and 

Canada and consistent with Article 1.C.3 of the Refugee Convention) except 

in the highly unlikely event of fearing persecution in the United States or 

Canada.

Following this approach would render superfluous the list of exceptions to the 

‘‘country of last presence’’ principle rendered in Article 4.2 of the Agreement. There 

would be no need to establish family relationships (and determining the legal status 

of anchor relatives), to determine ages of unaccompanied minors, or to compare visa 

policies in deciding the country responsible for examining the asylum claim. 

The claimant himself or herself would determine where he or she had the more 

relevant family ties, community support, or other factors that would make one country the preferred destination. This is consistent with UNHCR Executive Committee 

Conclusion No. 15 (XXX), which says that ‘‘the intentions of the asylum seeker as 

regards the country in which he wishes to request asylum should as far as possible 

be taken into account.’’

A FUNDAMENTALLY FLAWED AGREEMENT

The concept of establishing responsibility for examining an asylum claim based 

on the ‘‘country of last presence’’ is not an established principle in international law. 

Excom Conclusion No. 15, which delineates how ‘‘to resolve the problem of identifying the country responsible for examining an asylum request’’ says that ‘‘asylum 

should not be refused solely on the ground that it could be sought in another State.’’

The only exception Excom 15 draws to this principle is where it appears that a person, before seeking asylum, ‘‘has a connexion or close link’’ with another state, ‘‘he 

may if it appears fair and reasonable be called upon first to request asylum from 

that state.’’ (Emphasis added.) 

Nothing in the notion of ‘‘country of last presence’’ suggests a ‘‘close link.’’ In fact, 

the Agreement’s definition of the term ‘‘country of last presence’’ as the country ‘‘in 

which the refugee claimant was physically present immediately prior to making a 

21

refugee status claim at a land border port of entry’’ suggests that the ‘‘link’’ need 

not be close at all, but can be quite superficial and thin, such as that involving an 

asylum seeker’s direct and immediate travel from an airport to the border. 

In contrast to the Agreement, U.S. law abides by the concept that only persons 

‘‘firmly resettled in another country prior to arriving in the United States’’ should 

be barred from consideration for asylum (INA § 208(b)(2)(A)(6). Reliance on the 

‘‘country of last presence’’ is inconsistent and incompatible with this principle in 

U.S. law. U.S. law, in fact, not only requires the ‘‘close link’’ called for in the international legal standard to refer the claimant to another state but goes further by 

setting the standard as high as ‘‘firmly resettled.’’

While the meaning of ‘‘firmly resettled’’ is still developing in jurisprudence, it is 

clear that it requires substantially closer links than the mere ‘‘last presence’’ in this 

Agreement, and minimally requires not only tolerance, but a legal claim leading to 

permanent residence or undisturbed long-term residence suggesting de facto permanence. 

In Matter of Pula, 19 I&N Dec. 467 (BIA), the Board of Immigration Appeals determined that asylum should be granted to an otherwise eligible national of Yugoslavia despite his having transited through the Netherlands and having spent six 

weeks in Belgium. He was not barred from consideration because ‘‘it does not appear that he was entitled to remain permanently in either country.’’

In Cheo v. INS, 162 F. 3d 1227 (9th Cir. 1998), a case involving ethnic Chinese 

from Cambodia who had spent three years in Malaysia without incident, the U.S. 

Court of Appeals for the Ninth Circuit ruled that while the fact of their living in 

Malaysia for three years without problems did shift the burden of proof onto the 

claimants, ‘‘This does not mean that as soon as a person has come to rest at a country other than the country of danger, he cannot get asylum in the United States. 

Another country may have allowed only a temporary and not a permanent refuge.’’

In Andriasian v. INS, 180 F. 3d (9th Cir. 1999), the Ninth Circuit considered the 

case of an ethnic Armenian from Azerbaijan who had spent three years in Armenia 

prior to seeking asylum in the United States. In remanding the case to the BIA for 

a grant of asylum, the Ninth Circuit made quite clear that ‘‘firmly resettled’’ requires considerably more than that he had ‘‘spent a considerable amount of time’’

in Armenia. The court pointed out that ‘‘at the time his family lived in Armenia, 

there were no procedures in place for refugees to apply for asylum or citizenship.’’

In Matter of Soleimani, Dec. 3118 (BIA 1989), the Board went further, and granted asylum to an Iranian Jew who had spent 10 months in Israel where the applicant had the right under Israel’s Law of Return to Israeli citizenship. The BIA held 

that ‘‘a finding that an alien was firmly resettled in another country does not render 

him ineligible for asylum . . . [if] the alien can demonstrate countervailing equities 

that are compelling in nature.’’ The BIA listed factors to consider, including ‘‘family 

ties, intent, business or property connections, and other matters.’’ (Emphasis added.) 

The U.S.-Canada Safe Third Country Agreement would contradict the considerable body of U.S. case law that has established the principle that mere physical 

presence in another country ought not to preclude the right to seek asylum in the 

United States. Unless an agreement with Canada was limited to barring asylum to 

persons who had been firmly resettled in the other country (i.e., granted asylum in 

Canada, leading to permanent residence), it would be inconsistent with the principles underlying U.S. asylum generally. 

PARTICULAR PROBLEMS WITH THE AGREEMENT

Beyond the fundamentally flawed ‘‘country of last presence’’ foundation for the 

Agreement, I would also like to raise concerns regarding specific points in the 

Agreement.

1) If the parties choose to retain the ‘‘country of last presence’’ framework 

(which would make it unacceptable to Amnesty International), the agreement should include a provision excepting migrants who can demonstrate 

that they moved expeditiously to the second country after entering the first. 

(Such a provision was included in the aborted 1996 draft safe third country 

agreement between Canada and the United States.)

2) Given disparities in eligibility for refugee status in the two countries (by, 

for example, the one-year filing deadline in the United States), the agreement should include a provision saying that claimants who are eligible to 

apply for asylum in one country but not the other should have access to the 

country in which they are eligible to apply regardless of the country of last 

presence.

22

3) In its definition of ‘‘refugee status determination system,’’ the agreement 

should specify that for purposes of this agreement, a refugee status claimant returned from one country will have ‘‘access to a full and fair refugee 

status determination procedure’’ in the other country (language from the 

preamble). This would prevent a person being returned from Canada to the 

United States from being subjected to expedited removal procedures 

through which he or she might not have a status determination on the merits of the refugee claim.

4) The exceptions in Article 4.2, while welcome, are likely to be very difficult 

to determine. Are the family members the actual blood relations they are 

claimed to be? Are the anchor relatives in the proper legal status to qualify 

for the exception? Are unaccompanied children the ages they claim to be? 

Are they truly unaccompanied? The result will be refugees left in limbo and 

perhaps kept indefinitely in detention. We will see a burgeoning bureaucracy, added costs, and disputes between Canada and the U.S. that currently 

don’t exist.

5) Article 5 is strangely asymmetrical. It is not at all clear why different procedures should be in place depending on which of the two countries an asylum-seeker is transiting through after being removed from the other country. Since it is likely that persons being removed from one country and 

transiting through the second would have exhausted their claims for relief 

from removal in the first country, it makes sense to have the refugee claim 

examined in the transit country. Otherwise, if the procedure outlined in Article 5.a prevails, the applicant could conceivably remain in orbit indefinitely: the asylum-seeker rejected by Canada could claim asylum while in 

transit through the United States, then, pursuant to Article 5.a, be returned to Canada, where he would be denied again, and removed via the 

United States where he could again claim asylum, and repeat the process 

ad infinitum. On the other hand, it does not seem consistent with international obligations for nonrefoulement for the transit country simply to 

permit the onward travel of a person in transit without itself examining the 

claim (which would be the procedure under Article 5.c). For example, a person could have been denied asylum years prior to his or her removal from 

the United States (in many cases, the United States is not able to execute 

a removal order), during which time conditions could have changed in the 

home country. To deny such a person transiting through Canada the opportunity to apply for asylum there because a prior claim ‘‘has been rejected 

by the United States’’ could place Canada in violation of its obligations 

under the Refugee Convention. Here, again, the simpler solution would be 

both more fair and less likely to create additional problems: the transit 

country should hear the asylum claims of persons in transit; it should not 

push them back and forth or send them home without hearing their refugee 

claims.

6) A time limit should be placed on the determination of the country responsible for examining the asylum claim to prevent persons being stranded between the two countries.

7) The agreement should specify that the transfer of an asylum seeker from 

one party to the other should take due regard to the safety and dignity of 

the person. A time limit should be placed on the transfer so that the alien 

does not remain in limbo between the two countries even after a determination of the responsible country has been made.

8) The agreement should also include specific provisions referring to the international principle, per UNHCR Executive Committee Conclusion No. 44 

(XXXVII) and Article 9 of the International Covenant on Civil and Political 

Rights, that asylum seekers should not normally be detained. It should require that asylum seekers returned to the country of last presence not be 

detained, unless the claimant is found to represent a danger. In cases 

where an applicant would be detained in the country of last presence if returned, but would not be detained in the other country, the applicant 

should not be returned to the country of last presence.

9) Article 7 should more strictly protect the confidentiality of asylum seeker 

information. It should delineate the specific information required and state 

that the information should be used exclusively for the purposes of this 

agreement and the information should be kept only for the time necessary 

for the purposes for which it was exchanged. Information should only be exchanged between authorities whose designation has been communicated to 

23

and accepted by each party. The agreement should explicitly prohibit divulging information regarding the claimant or the claim to the claimant’s country of origin or to any other entity that might disclose the information 

to a possible persecutor.

10) Article 7 should also require that the applicant should receive any information exchanged between the two parties concerning him or her and have the 

opportunity to have inaccurate information corrected or deleted before it is 

sent to the second party.

11) Article 8 on standard operating procedures should include in the notification to the country of last presence that the return is for the purposes set 

out in Article 4 and should require confirmation of receipt of notification 

prior to transfer.

12) Article 8.3 on review of the agreement is inadequate. A new article should 

be added on monitoring of the agreement. Representatives of UNHCR, Congressional or Parliamentary bodies, and NGOs should be guaranteed access 

to monitor on an ongoing basis all phases of the implementation of the 

agreement, including access to refugee status claimants undergoing the procedure (with their consent).

13) Article 9 should be deleted. It is not germane to the agreement, and suggests ‘‘side deals’’ that detract from the purposes set forth in the preamble. 

Certainly, both countries should be encouraged to assist each other in resettlement, but the expression of such a sentiment does not belong in this 

agreement.

The old adage says, ‘‘If it ain’t broke, don’t fix it.’’ While much about the Immigration and Naturalization Service is broken, this particular ‘‘fix’’ is likely to put the 

INS in a deeper hole. It will create new burdens on an overburdened system that 

may soon be undergoing the additional disruption of moving in whole or in part 

from the U.S. Department of Justice to a new Department of Homeland Security. 

It also is more likely to create a less secure border. It is likely to produce a new 

human trafficking industry on our northern border that does not now exist. 

Canadian and US officials should look long and hard at the European experience 

with so-called ‘‘safe third country’’ agreements. Arguably, they have resulted in 

more people in orbit, chain deportations, and ‘‘burden shifting’’ rather than burden 

sharing. These agreements have not been the panacea for controlling irregular migration; in fact, they have essentially invited migrants to destroy their documents 

so to prevent tracking transit countries. When they have succeeded in returning 

asylum seekers to so-called safe third countries, the burden has often eventually 

shifted to countries in the regions of conflict that often lack the resources and legal 

mechanisms to provide adequate refugee protection. This, of course, is the antithesis 

of international burden sharing. 

Because this Agreement so clearly has no benefit for the United States, it raises 

the question, why? A cynical interpretation would hold that it is the first step. Create a precedent with Canada, a country known for its generosity and legal traditions. Once the precedent is set, enter into agreements with other countries, closer 

to zones of conflict, with fewer resources to accommodate refugees, and less developed traditions of legal due process. The pay-off would be the creation of buffer 

states, such as Mexico, to which asylum-seekers would be returned. The idea is not 

so far-fetched. The United States has made its intentions known by diverting Chinese boat people seeking asylum in the United States to Mexico, which, in turn, has 

summarily returned them to China. Signing this agreement, however, would set the 

stage for formalizing and extending such practices beyond pushing boats away from 

our shores; it takes the United States a step closer toward blocking all asylum-seekers who do not arrive directly from the country of persecution from access to our 

asylum system. Look at a map. With interdiction of boat arrivals—including Cubans 

and Haitians—in place, and our land borders covered by ‘‘safe third country’’ agreements, the United States would essentially be sealed off from most asylum-seekers, 

precious few of whom would be able to flee directly from their homelands to the 

United States. We would then have a pristine asylum procedure on paper, but wash 

our hands of the need to examine real claimants on the merits. The dirty work of 

returning refugees to persecution would be left to others. But that would be cynical.

Mr. GEKAS. We thank the gentleman. Let the record indicate 

that the lady from Texas, Representative Sheila Jackson Lee, is 

present. We will accord her the right of rendering an opening statement if she wishes to do so or to submit it to the record. And following that, I will engage in the Chair’s 5-minute questions. 

24

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let 

me—first of all I am going to—I am not sure of the procedures 

here. I want to state on the record an objection that I was intending to cast, but what I am going to do is to indicate my concern 

that no Members are here, that you might be aware that Members 

respectively are in conference meetings dealing with important end 

of the session matters, and therefore no Members are here. 

This hearing is an important hearing for the witnesses, and I 

have some disagreement with the proposed actions of the Administration. And I believe the hearing is so important that it would be 

worthy of us holding another hearing and it would be worthy of us 

having sufficient input to balance the protection of our borders and 

the hiding of terrorism with the excellent analysis that Mr. Frelick 

has given us on the backlog. I will simply say that I have concern 

that people who are constantly getting less than second class status, third, fourth and fifth, who are fleeing because of persecution, 

the backlog of any asylees would impact negatively on their efforts, 

which are always seemingly rejected by this Nation. 

So what I would ask to do is to have my concerns expressed on 

the record that there are no Members here. This is a vitally important issue, and I will submit my statement into the record and as 

well will pose my questions subsequently individually to these particular witnesses. 

Mr. Chairman, thank you. I yield back. 

Mr. GEKAS. We thank the lady, and we note again that there is 

present a quorum for the purposes of establishing this hearing. 

The first round questioning will be from the Chair. 

Mr. Frelick, are you saying that when someone reaches the 

United States, that right then and there in New York or in Newark 

or someplace, that that individual can declare that he or she wants 

to go to Canada to establish asylum? 

Mr. FRELICK. No. What happens currently is a person would be 

apprehended at JFK Airport, for example. They would then apply 

for asylum in the United States. All right? If they establish a credible fear, they then become eligible for parole. It doesn’t happen in 

all cases, but if the person is paroled from detention—and oftentimes, again—the intention of the person is they had wanted to 

apply for asylum in Canada in the first place. They may be a Haitian, for example, who speaks French and wants to go to Quebec. 

It may be a Tamil from Sri Lanka, and there is a large Tamil community in Toronto, but they may not have been able to get directly 

to Canada. For example, from Latin America there are virtually no 

flights that go directly from any Latin American country to Canada. They all pass through the United States. 

So this will be a person who would have been apprehended here, 

and in order to avoid deportation to their home country, they are 

essentially forced to apply for asylum here, even though that is not 

the place where they wanted to apply for asylum. Then if they are 

paroled from detention, they then proceed on to Canada and they 

have been allowed—heretofore they have been allowed to apply for 

asylum in Canada. 

Ironically, they appear as absconders, they appear as no-shows 

in INS statistics, but really what that shows is they are really not 

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tended all along to go to Canada, and they didn’t want to get two 

bites at the apple. They really only wanted to apply in Canada. 

And again, I think this relates to a relatively few number of people. 

It is not a major problem to begin with. 

Mr. GEKAS. But the exceptions that all of you agreed have been 

inserted in this agreement, wouldn’t they accommodate the very 

situation you just mentioned, someone from Haiti who has a lingual connection——

Mr. FRELICK. No. There is no exception for community ties. 

There is no exception whatsoever for that. The only exception may 

be a family tie, but think of this and think of it in terms of the 

overseas resettlement program now, the difficulty of establishing 

that that in fact is the relative that you claim it to be. We have 

got nieces and nephews as part of this agreement, which I think 

is great, but how are you going to prove that that is your niece, 

your nephew, your aunt, your uncle? 

Mr. GEKAS. Then the purpose of this agreement is fulfilled under 

that——

Mr. FRELICK. What I think will happen——

Mr. GEKAS. Because he goes to Canada, there is no connection, 

so the individual comes back to the U.S.? 

Mr. FRELICK. In implementation, people are going to be left in 

limbo, perhaps in detention for long periods of time as the two governments argue about which country ought to be examining this 

claim. There is no time limit for that determination. It could be a 

very, very long time indeed, and it would simply—what I am suggesting—be far easier to allow the person to apply for asylum, have 

a full and fair hearing in one of the two countries. You either grant 

or deny it on the merits and then don’t allow the person to apply 

in the other country. That simple. 

That is simple. You don’t have to get involved in all of these really arcane and convoluted exceptions, and the determination of 

whether or not a person qualifies for an exception. 

Mr. GEKAS. Let me ask a generic question that any one of you 

can answer, or you can leave the room if you don’t want to answer 

it. That is, what does the High Commissioner have to do with this 

agreement between the United States and Canada? 

Why does the High Commissioner ever enter into the picture at 

this stage, or does he or she? 

Ms. RYAN. I would like to take that question, please. The primary reason that we consulted with UNHCR, and we did that after 

we consulted with your offices and members of our public, was that 

UNHCR has a unique role under the Refugee Convention and the 

Protocol, in that that they advise the U.S. Government and any 

party to the Refugee Convention, in a supervisory capacity, about 

our obligations under it. 

So they give us advice about whether we are or are not meeting 

our international law obligations under the treaty. 

Mr. GEKAS. Does he offer that? We see a problem, do we then ask 

him to sort of give us advice? 

Ms. RYAN. We continually talk and invite UNHCR in that capacity here in Washington, and in Geneva. But, because we thought 

this safe third-country agreement was so important, we actually 

26

flew a number of Government officials to Geneva to bring it up 

with the head of protection in Geneva in July. 

Mr. GEKAS. Well, succinctly does the High Commissioner have 

any veto power or ability to criticize this agreement? 

Ms. RYAN. They don’t have any veto power other than United 

States law and practice. 

Mr. GEKAS. Thank you for saying that. 

Ms. RYAN. But they do give us their best advice, and we took it. 

And their advice was that these type of agreements, they do not 

have any opposition to these agreements in principle. They had a 

lot of questions about how it would operate. We invited them, if 

they chose to, to cooperate with us and come to the border and 

watch how it would go. 

But, you know, if we changed our law in such a way that they 

disagreed, we certainly have that right to do so. 

Mr. GEKAS. Mr. Langlois, several times, at least twice, you said 

on the proposed agreement. I have used that conditional language 

as well, because it is just initialed. But do you think it is a fait 

accompli from what you have learned or know, or have memorandums to demonstrate it? 

Mr. LANGLOIS. I don’t know if it is a fait accompli. My understanding is that it still has to be signed by the Secretary of State, 

and then we will go through the normal rulemaking process, in 

that we will have a proposed regulation, we will have a comment 

period associated with that regulation, a minimum of 30 days. 

We will analyze the comments. We will make adjustments based 

on those comments, and then we will have an implementation. 

Mr. GEKAS. When we talk about the fact that this is a land-toland transaction, it doesn’t cover all of the others, what about the 

Lake Erie and Lake Michigan and Lake Huron—I can I name all 

five, I think. 

Is that an exception within the exception? How do we treat 

them? Is that seaport land, or what is it? 

Mr. LANGLOIS. Those would not be considered land ports and 

would not be covered by this agreement. 

Mr. GEKAS. The staff has prepared one excellent question, I 

think. Explain how this safe third country agreement would prevent terrorists from coming to the U.S. From Canada? We will take 

an hour for your explanation. What is the theory? 

Ms. RYAN. We don’t, and we have never tied this particular 

agreement to the counterterrorism measures included in the 30-

point action plan. This agreement is designed to make a regular 

process of asylum seekers. 

Right now at the land borders, and at the sea borders and at the 

airports, we have agreement and work cooperatively with the Canadian government if they identify a terrorist and they are sending 

them back to us. 

So we have a procedure that would operate to—if they have identified someone as a terrorist and they are sending him back, it 

works right now. We view this not as a counterterrorism measure, 

but as a separate part of the 30-point action plan, and not tied directly to counterterrorism. 

Mr. GEKAS. But, you say not directly. But most of you agree that 

real action toward this agreement was taken after September the 

27

11th, meaning by implication, that this could be another step taken 

to prevent unsafe border crossing. 

Ms. RYAN. Negotiation of this proposal was undertaken after 

September 11th, and at the request of the Government of Canada 

as part of the 30-point action plan. We think it should be viewed 

in that context. 

But it does not directly affect U.S. security. It is important to the 

Government of Canada, and it is important for us getting the other 

objectives of the border plan, and that is how Tom Ridge and Attorney General Ashcroft envisioned it working. 

So we view this as an important agreement in the context of the 

overall 30 points that Canada wants and that we are willing to 

agree to as a trade-off for the other important counterterrorism 

measures. 

Mr. KRIKORIAN. I see this as having a small direct impact on 

counterterrorism and a larger indirect impact. The small direct impact would be that bad guys trying to get into Canada in order to 

take advantage of its more lenient asylum rules and its much other 

extensive social benefits for asylum applicants, in order to operate 

there and use it as sort of a launching pad for attacks in United 

States, as we have seen in the past, they wouldn’t be able to do 

it. 

In other words, we would get them before they were able to get 

to Canada as a kind of haven, if you will. That is, in my opinion, 

a relatively modest, but possibly significant benefit. The longer 

term indirect benefit is that it is a building block for applying the 

safe third-country provision, both by the United States applying it 

and Canada applying it, to Western Europe. And a significant 

number of Islamic terrorists have come from Western Europe, are 

very active in Western Europe, and come to the United States and 

used asylum as a tactic to avoid deportation back to either their 

home countries or presumably to the safe country they passed 

through before they got here. 

In other words, its value is longer term as a precedent. 

Mr. GEKAS. Using your example, you are saying that it is safer 

for us to harbor a terrorist in the first instance than to permit 

them to go to Canada? 

Mr. KRIKORIAN. If we lock them up in detention, yes. It certainly 

would be, because we would know who they were, where they were, 

and ideally, and this is not exactly in the purview of this, but ideally we would detain every single asylum applicant. But we don’t 

have the capacity to do that. 

But ideally, all applicants for asylum should be detained until 

their cases are decided. So, sure, I would rather have a potential 

terrorist looked up in New Jersey than working in Manitoba. 

Mr. GEKAS. Yet it seems to me to me, subliminally, if not overtly, 

there is an antiterrorism flavor to this, which can be implied from 

the fact that there is no other such agreement pending with any 

other country. 

Doesn’t that indicate or—— Mr. KRIKORIAN. You would have to ask the Government witnesses about that. I don’t know. 

Mr. GEKAS. Can someone give an opinion of that? Why isn’t this 

a prospect for some other country? 

28

Ms. RYAN. The United States or the Executive Branch has no intention now of entering into any arrangement with another country 

other than Canada. We are doing this agreement, if we go through 

with it, at the request of Canada, because they believe it is important for reducing their asylum backlog. We don’t view this as a 

counterterrorism measure. 

But, in order to get the important counterterrorism pieces of the 

30-point action plan, this was a trade-off in order to get that. So 

we do not view this as a counterterrorism measure in and of itself. 

Mr. GEKAS. No more staff questions. 

I made a note during Mr. Krikorian’s testimony, and I have a 

question mark after it, but I don’t remember why I made the question, in which I questioned modest increase that Mr. Krikorian 

used. 

Mr. KRIKORIAN. Well, it is true that 15,000, or last year 15,000 

people applied for asylum passing through the United States at Canadian land ports, but it is open to debate whether that would 

mean automatically next year 15,000 more people would apply for 

asylum in the United States. 

It is at least conceivable this would have a deterrent effect for 

those who would understand that they don’t have an asylum claim 

that would get anywhere in the United States, or don’t want to be 

locked up in detention, and would apply for asylum elsewhere, in 

Western Europe or elsewhere, rather than attempt to use the 

United States, transit the U.S. to get to Canada. 

In other words, my point is not that there won’t be an increase, 

there probably will be an increase in our asylum caseload. But, it 

is not obvious that it is going to be a one-to-one increase. In other 

words, it is the same size as the number of people applying at land 

borders now. 

Mr. GEKAS. Well, I thank the witnesses. I do believe we have 

more inquiry to conduct in this issue. I personally will direct the 

staff to put me in touch with Secretary Powell just to discuss the 

matter a little more deeply. 

In the meantime, we express our gratitude for your testimony 

and for your responding to your requests, and we bid you adieu 

with gratitude. This hearing is adjourned. 

[Whereupon, at 3:55 p.m., the Subcommittee was adjourned.] 

(29)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Mr. Chairman, thank you for calling this hearing on an issue that we as Americans should hold dear to our ideals—asylum. Today I look forward to hearing from 

the witnesses on the U.S.-Canada Safe Third Country agreement, which is currently 

under consideration. I know that there are concerns from advocates on both sides 

of the issue, yet I hope that we can strike a balance that recognizes the legitimate 

needs of those persecuted in their home countries and the prevention of Asylum 

shopping for the best country to flee toward. 

As currently written, I am concerned about some of the agreements provisions. 

As written, the agreement would prevent third country nationals from crossing 

through either the United States or Canada in order to apply for asylum in the 

other country. I have heard from the advocacy community that this will impact 

about 15,000 third-country nationals per year that pass through the United States 

before seeking asylum in Canada. It is my understanding that only about 200 asylum seekers arrive here from Canada. As many of you know, I have been a strong 

advocate for Haitian Asylum seekers. In light of our past record with Haitian 

Asylees, I would be particularly interested in hearing from the witnesses how this 

agreement may complicate of Haitian Asylum seekers who already face a difficult 

path at American ports of entry. 

The opponents of this agreement point out that at a minimum, this agreement 

will increase dramatically the U.S. asylum caseload. Last year, the U.S. received 

more than 60,000 new applications, and the backload is estimated at upwards of 

250,000. Currently, 96,600 Asylees adjustment applications are pending; a person 

granted asylum today is not likely to be processed for adjustment of status until the 

year 2011 at the earliest. 

It is my understanding that now, third country nationals in the United States 

who want to apply for asylum in Canada are encouraged to appear at our ports of 

entry. I am concerned that the new agreement fails to take note of the fact that 

the current system allows asylum-seekers themselves to decide where they have the 

closest community ties, and in which country they feel most supported while their 

asylum claims are pending. This is very important. I understand that the agreement 

makes exceptions and I would love to hear a strong explanation of how this agreement addresses those issues. 

I am also concerned that because the agreement applies exclusively at land ports 

of entry, that the agreement, while well intentioned, may encouraging asylum-seekers to evade ports of entry and cross our borders illegally. Opponents of this measure share this concern and point out that the change in policy may produce a 

human smuggling industry on our northern border, and new social service and security burdens for northern states, especially New York and Michigan. 

I understand that we must take account of our national interest in light of the 

new security threats facing our nation. However, we must not close our borders or 

bounce asylum seekers from one country to the other. Taken to the extreme, Third 

Country agreements between ours and other countries can pin asylum seekers to 

certain ‘‘asylum ghetto nations’’ or, worse—the very nations that they are fleeing. 

We must not forget, that we are a nation of refugees and asylum seekers. The 

pilgrims who landed this country fled religious and political persecution. Therefore, 

it is part of our national identity to be a haven for those fleeing persecution. We 

tend to forget that the Pilgrims did not come to this country under strict registration guidelines. The Pilgrims simply came to this country. As such, we should make 

every effort to reasonably facilitate the settling of the world’s asylum seekers. 

30

While I have concerns about this agreement I am willing to work with parties on 

both sides to maintain and develop a strong asylum record in the United States. 

Thank You Mr. Chairman.

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1 United States government officials have indicated that one reason they are pursing this 

agreement is a concern about duplicate asylum claims. But there appears to be no data demonstrating that there is a significant basis for this concern. The government’s failure to provide 

statistical information demonstrating the need for this agreement was also raised in 1996, during discussions relating to a prior safe third country proposal. See Bill Frelick, ‘‘Who’s on First? 

The Canada-U.S. Memorandum of Agreement on Asylum,’’ 73 Interpreter Releases at 219 (Feb. 

26, 1996). [hereinafter Frelick] 

PREPARED STATEMENT OF LAWYERS COMMITTEE FOR HUMAN RIGHTS

INTRODUCTION

The Lawyers Committee is a non-profit, non-governmental organization. Since 

1978, the Lawyers Committee has worked to protect and promote fundamental 

human rights, holding all governments—including the United States—accountable 

to upholding the standards set forth in the Universal Declaration on Human Rights 

and other international human rights instruments. 

For more than twenty years, the Lawyers Committee for Human Rights has 

worked to ensure protection of the rights of refugees, including the right to seek and 

enjoy asylum. The Lawyers Committee grounds its work on refugee protection on 

the international standards of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and other international human rights instruments, and 

we advocate adherence to these standards in U.S. law and policy. 

The Lawyers Committee operates one of the largest and most successful pro bono

asylum representation programs in the country. With the assistance of over 900 volunteer attorneys, the Lawyers Committee provides legal representation, without 

charge, to hundreds of refugees each year. Our pro bono lawyers represent asylum 

seekers before the INS Asylum Office, before the immigration courts, before the 

Board of Immigration Appeals and before the federal courts. Our extensive experience dealing directly with refugees seeking protection in the United States is the 

foundation of our advocacy work and informs this testimony. 

OVERVIEW OF OBJECTIONS TO THE PROPOSED AGREEMENT

The Lawyers Committee for Human Rights opposes the proposed Safe Third 

Country Agreement between the United States and Canada (the ‘‘Proposed Agreement’’). The Proposed Agreement is unnecessary, inefficient, and inhumane. The 

Proposed Agreement would bar asylum seekers from seeking refuge in the United 

States if they had transited through Canada, and it would bar asylum seekers from 

seeking refuge in Canada if they had transited through the United States. Thousands of asylum seekers would, in effect, be forced to apply for asylum in the United 

States rather than in Canada. The Proposed Agreement provides for some exceptions to these bars, but these are unduly limited. 

The Proposed Agreement fails to take into account the intentions of refugees who 

are fleeing from persecution, forcing them to seek asylum in the country they happen to have transited through rather than the country in which they may have family, friends, or other significant contacts who can house and support them while they 

struggle to put their lives back together again. The Canadian Council for Refugees 

(CCR) reported that approximately 35% of asylum claims made in Canada last year 

(14,807 claims) were made by claimants who arrived in Canada after having 

transited through the United States. 

We urge that the effort to enter into a ‘‘Safe Third Country’’ agreement with Canada be abandoned. The Proposed Agreement will result in needless hardship for refugees and their families, and serves no United States security or other purpose. The 

effort will lead to increased inefficiency and bureaucracy. And, as the Canadian 

Council for Refugees has pointed out, the Proposed Agreement may in fact make the 

U.S.-Canada border less secure. Yet the interests of refugees are being sacrificed—

apparently as some kind of bargaining chip in the larger U.S.-Canada border discussions. As a result, Canada will be able to shift a significant proportion of its asylum 

case load to the United States, and refugees will be forced to seek asylum in the 

United States, even when the only friends or family they can turn to may live in 

Canada. 

The United States has failed to offer any convincing explanation of why the Proposed Agreement is in the best interest of the United States. Concerns that some 

refugees may seek to maximize their chances of receiving protection by applying in 

both countries could be addressed by a narrower agreement that simply prohibits 

individuals from pursuing asylum in both countries.1 In addition, while the U.S. has 

not argued that security concerns necessitate that the U.S. enter into an agreement 

that requires a significant number of individuals to seek asylum in the U.S. rather 

34

2 67 Fed. Reg. 7309–18, AG Order No. 2559–2002, Board of Immigration Appeals: Procedural 

Reforms to Improve Case Management, February 19, 2002; Comments of the Lawyers Committee for Human Rights on the Proposed Rule relating to the Board of Immigration Appeals, 

March 20, 2002; Emily Heller, ‘‘Clash Over Plan for Immigrant Appeals,’’ The National Law 

Journal, July 15, 2002. 3 Joanne van Selm, Access to Procedures: ‘‘Safe Third Countries,’’ ‘‘Safe Countries of Origin’’

and ‘‘Time Limit,’’ 2001, commissioned by UNHCR and the Carnegie Endowment for International Peace in connection with the UNHCR Global Consultations on International Protection. 4Kate Jastram & Kathleen Newland, ‘‘Family Unity and Refugee Protection,’’ commissioned 

by UNHCR in connection with the UNHCR Global Consultations (2001)(available at 

www.UNHCR.ch). 

than Canada, concerns regarding security can be met by provisions allowing for the 

sharing of information (with appropriate safeguards) between the two countries. 

At a more fundamental level, the Proposed Agreement is yet another signal reflecting the U.S. government’s abandonment of its position as a leader in the protection of refugees. The drastic decline in refugee admissions, the Department of Justice’s changes to the Board of Immigration Appeals which are depriving asylum 

seekers of meaningful appellate review,2 and this Proposed Agreement are all part 

of the same disturbing shift. Once again, it is refugees and their families who will 

feel the impact of this most recent proposed change. 

THE PROPOSED AGREEMENT WILL CREATE NEW INEFFICIENCIES AND WILL RESULT IN

DEPRIVATION OF PROTECTION FOR DESERVING REFUGEES

The implementation and maintenance of the Proposed Agreement would place a 

substantial additional burden on the U.S. asylum adjudication system and would 

create significant inefficiencies and waste in both the U.S. and Canadian systems. 

Not only would the Proposed Agreement significantly increase the U.S. asylum adjudication caseload (according to Canada’s figures, more than 14,000 asylum seekers 

transited through the United States before seeking asylum in Canada in 2001), but 

the Proposed Agreement also would require the creation of a special process and 

procedures to assess applicability of the agreement and its exceptions in individual 

cases. The ‘‘safe third country’’ arrangements that proliferate in European asylum systems are notorious for their failure to protect refugees by bouncing them back 

through their trek in search of protection, a phenomenon known as ‘‘refugees-inorbit’’ or ‘‘refugee soccer.’’ In some cases, asylum seekers have been rejected by one 

state on ‘‘safe third country’’ grounds, only to find themselves rejected again by the 

state they are sent back to. These procedures waste scarce adjudication resources, 

and safe third country arrangements in the European Union have left more asylum 

seekers without procedures for longer periods of time and have led to considerable 

delays in processing.3

The costs of designing new procedures, regulations and systems to create ‘‘safethird country’’ arrangements in both the United States and Canadian asylum systems, and the additional cost of implementing these procedures in individual cases, 

will not be insignificant. In addition, as detailed below, a system which undermines 

family reunification will also create additional burdens as family unity enhances refugee self-sufficiency and lowers social and economic costs to states.4

The Proposed Agreement is unnecessary in order to ensure that asylum seekers 

do not pursue asylum claims in both countries. A much narrower agreement could 

prevent duplication. Moreover, U.S. law and regulations already prohibit asylum 

seekers who pass through Canada and receive a ‘‘permanent offer of resettlement’’ in Canada from receiving asylum in the U.S. (See INA 208(b)(2)(vi) & 8 C.F.R. 

208.15) Similarly, under Canadian law, a claim is ineligible if ‘‘the claimant has 

been recognized as a Convention refugee by a country other than Canada and can 

be sent or returned to that country.’’ (See the Immigration and Refugee Protection 

Act, s. 101(1)(d)). To the extent that U.S. and Canadian officials are concerned about 

their ability to enforce such provisions, an enhanced ability to share information, 

could, with appropriate confidentiality safeguards, allow each government to verify 

if an individual had in fact received such status in the other country. 

Not only will the agreement lead to increased inefficiencies, burdens, and delays, 

but it may also undermine orderly and secure procedures at the border. As the Canadian Council for Refugees has recently pointed out:

The agreement is likely to make the border ‘‘less’’ not more secure. The proposed agreement will destroy the current orderly process at the border and likely create disorder. Similar agreements in Europe have led to new problems of 

smuggling. Currently, those wishing to claim refugee status present themselves 

in an orderly fashion at the border for examination by Canadian officials. When 

35

5 Canadian Council for Refugees, ‘‘Talking points: Announcement re. U.S.-Canada ‘‘Safe Third 

Country’’ Agreement, June 28, 2002. 6 UNHCR ExCom Conclusion No. 15 (XXX/1979), available at www.unhcr.ch. For a comprehensive discussion of relevant international standards see Frelick supra note 1 at 217. 7Frelick supra note 1 at 223.

that door is closed, desperate refugees will try to get across illegally. Smugglers 

will exploit the situation. The problems of exploitation, accidental deaths and 

border enforcement already seen along the US-Mexico border will find their parallel to the north.5

ASYLUM SHOULD NOT BE REFUSED SOLELY ON THE GROUND THAT IT COULD BE SOUGHT

FROM ANOTHER STATE

On December 3, 2001, the United States and Canada issued a ‘‘Joint Statement 

on Cooperation on Border Security and Regional Migration Issues.’’ In this statement, the two countries agreed ‘‘to begin discussions on a safe third-country exception to the right to apply for asylum.’’ According to the December 2001 agreement, 

the safe third country arrangement ‘‘would limit the access of asylum seekers, under 

appropriate circumstances, to the system of only one of the two countries.’’

After this announcement, representatives of U.S. refugee advocacy and assistance 

organizations met with representatives of the Immigration and Naturalization Service and the Department of State and urged that any such agreement be based on 

the refugee’s choice rather than the arbitrary concept of country of ‘‘first arrival’’—

or as phrased in the Proposed Agreement, ‘‘country of last presence.’’ The Lawyers 

Committee believes that any limitations on the right to seek asylum in a particular 

country place great emphasis on the choice of the refugee. Not only is this more humane, but it is consistent with internationally agreed upon principles of refugee protection, and in particular the conclusions of the Executive Committee of the United 

Nations High Commissioner of Refugees. Conclusion 15 specifically states that ‘‘asylum should not be refused solely on the ground that it could be sought from another 

state.’’ Indeed, there is no provision of international law that requires a refugee to 

apply for asylum in her first country of arrival. Conclusion 15 also confirms that 

‘‘the intentions of the asylum seeker as regards the country in which he wishes to 

request asylum should as far as possible be taken into account.’’ 6

An agreement that takes into account the intentions of the refugee is also the 

most sensible choice. Arrangements based merely on the fact that a refugee happened to transit through one country would, as noted above, leave refugees vulnerable to the exploitation of smugglers and could lead to the very insecurity both the 

United States and Canada have declared they wish to avoid. 

THE PROPOSED AGREEMENT WILL HAVE A NEGATIVE IMPACT ON REFUGEE FAMILIES

When refugees flee their home countries, there are often few people to whom they 

can turn. Their immediate families may be missing or killed. Concerned about the 

ability of children to travel, they may leave their children behind with someone they 

trust or in a refugee camp (which may not be safe) while they struggle to find a 

secure safe haven. Refugees often turn to the few contacts that they may have, seeking refuge in those countries where they may have relatives or family friends who 

can help provide urgently needed support while they struggle to reclaim their lives 

and their safety and that of their children. 

Often it is not physically possible to reach these destination countries without 

transiting through other countries. To bar an asylum seeker from seeking asylum 

in the country where they have family or other support or ties, would be unfair both 

to refugees and to their families. If asylum seekers are forced to seek asylum in a 

country where they have no ties, many will have no place to live and insufficient 

resources to support themselves, prolonging the time it will take for them to re-establish themselves and their surviving family. 

We urge that any safe third country arrangement include an exception for asylum 

seekers who have simply transited through one country on their way to the other. 

While the draft safe third country arrangement that was under discussion in the 

mid-1990s included a rigid definition of transit, a less rigid approach to ‘‘transit’’

is more realistic. As Bill Frelick explained in his 1996 article on the prior safe third 

country proposal:

Setting fixed time limits neglects the many obstacles to travel that refugees encounter particularly when they are poor, female, and/or traveling with children. 

Journeys are slowed by a variety of circumstances, including immigration detention, health problems and lack of funds.7

36

8Summary Conclusions on Family Unity, Geneva Expert Roundtable, UNHCR Global Consultations on International Protection, November 8–9, 2001, at ¶ 6; Kate Jastram & Kathleen 

Newland, ‘‘Family Unity and Refugee Protection,’’ commissioned by UNHCR in connection with 

the UNHCR Global Consultations (2001)(available at www.UNHCR.ch). 9Summary Conclusions on Family Unity, supra n.7 at ¶ 8. 10 UNHCR, ‘‘Background Note: Family Reunification in the Context of Resettlement and Integration, Annual Tripartite Consultations on Resettlement,’’ June 20–21, 2001, available at 

www.unhcr.ch.

In our work with refugees, the Lawyers Committee has frequently encountered 

asylum seekers who were planning to seek refuge in Canada where they have family 

or friends, but were left with no other choice than to apply for asylum in the United 

States after they were detained while attempting to transit to a flight bound for 

Canada. For these asylum seekers, their period of transit in the United States was 

effectively extended by the government’s decision to detain them, another reason 

why a brief and rigid transit exception is not appropriate. For many asylum seekers, 

often it is not a brother or sister that they have in Canada. Refugee families are 

typically fragmented and torn-apart. More often, it is a less immediate relative, such 

as a cousin, or a long-time family friend or colleagues from the refugee’s political 

party or religious group. This kind of support system is tremendously important for 

refugees we have worked with—not only for their physical survival (food and shelter) but also for their ability to re-establish themselves and to ultimately reunite 

their surviving families. 

The importance of reuniting refugee families, and the right of refugees to family 

unity, were the subject of careful examination last year during the course of the 

UNHCR Global Consultations. In the context of those discussions, refugee law experts detailed the many ways in which family unity enhances refugee self-sufficiency and lowers social and economic costs for states.8

While noting that the concept of family includes nuclear family at a minimum, 

a groups of experts convened by UNHCR also confirmed that ‘‘[t]he question of the 

existence or non-existence of a family is essentially a question of fact, which must 

be determined on a case-by-case basis, requiring a flexible approach which takes account of cultural variations, and economic and emotional dependency factors.’’ 9

UNHCR, in a background note on the issue of family reunification, explained why 

a broad approach to family is critical in the refugee context: 

Given the disruptive and traumatic factors of the refugee experience, the impact 

of persecution and the stress factors associated with flight to safety, refugee 

families are often reconstructed out of the remnants of various households, who 

depend on each other for mutual support and survival. These families may not 

fit neatly into preconceived notions of a nuclear family (husband, wife and 

minor children). In some cases the difference in the composition and definition 

of the family is determined by cultural factors, in others it is a result of the 

refugee experience. A broad definition of a family unit—what may be termed 

an extended family—is necessary to accommodate the peculiarities in any given 

refugee situation, and helps minimize further disruption and potential separation of individual members during the resettlement process.

The principle of dependency requires that economic and emotional relationships 

between refugee family members be given equal weight and importance in the 

criteria for reunification as relationships based on blood lineage or legally sanctioned unions.10

The Proposed Agreement contains a definition of ‘‘Family Member’’ that is unduly 

restrictive and ignores the reality of the refugee experience. The definition should 

be revised to comport with the reality of the refugee experience, and should be expanded to include ‘‘cousins or other relatives’’ as well as others. The agreement 

should allow for a case-by-case examination of the individual refugee’s situation, 

and should make clear that this definition is not to be interpreted restrictively. The 

agreement should also provide for an additional exception for ‘‘community support 

contact’’ which could include family friends or other colleagues who are willing to 

submit statements attesting to their willingness to house and support the asylum 

seeker during the asylum process. 

DIFFERENCES BETWEEN U.S. AND CANADIAN LAW AND PROCEDURE WILL RESULT IN

ARBITRARY RESULTS FOR SIMILARLY-SITUATED REFUGEES

There are an array of areas in which U.S. and Canadian asylum law and procedures differ—and differ significantly. These include expedited removal, detention, 

adjudication of gender based claims, interpretation of the ‘‘nexus’’ requirement, and 

the one-year filing deadline—to name just a few areas. In many cases, refugees who 

37

11Letter from Center for Gender and Refugee Studies, University of California, Hastings College of Law, to Minister of Citizenship and Immigration, Ottawa, Canada, dated April 2, 2002, 

copied to INS General Counsel Owen B. Cooper. 

would qualify for asylum in Canada could find themselves barred from asylum in 

the U.S. based on these provisions, yet would be unable to pursue refuge in Canada 

under the Proposed Agreement even though they would qualify for asylum in Canada. 

The Center for Gender and Refugee Studies of the University of California, 

Hastings College of Law, has conducted a comprehensive analysis of the differences 

in U.S. and Canadian law with respect to gender-based asylum claims and the impact that a safe third country agreement could have on women who seek protection 

from gender-based persecution. This analysis also detailed the impact of the restrictive interpretation of the ‘‘nexus’’ requirement by many U.S. courts. The Center for 

Gender and Refugee Studies concluded that ‘‘any agreement requiring Canadianbound asylum seekers to make their claims in the United States has the potential 

to lead to denials of protection and to the return of women asylum seekers to their 

persecutors, in violation of international law.’’ 11

Similarly, there may be refugees who cannot be granted asylum because of the 

one-year asylum filing deadline in U.S. law, but would be barred from asylum in 

Canada under the Proposed Agreement—even though they would be eligible for asylum in Canada. The filing deadline and its narrow exceptions have resulted in thousands of people being denied the opportunity even to request asylum, and consequently has been the subject of criticism by refugee advocates. Since the filing 

deadline has gone into effect in the U.S., well over 13,000 asylum seekers have had 

their asylum claims rejected as untimely. From our own work with asylum seekers, 

we know that individuals who meet the Convention definition of a ‘‘refugee’’ are 

sometimes unfairly denied asylum as a result of the U.S. asylum filing deadline. 

To the extent any safe third country agreement is pursued, it should include an 

exception for those who would be ineligible for asylum in their country of last presence, for reasons unrelated to the merits of the asylum claim, but would be eligible 

to receive asylum in their country of planned destination. 

CONCLUSION

There is no compelling reason for entering into this agreement with Canada. The 

Proposed Agreement will create additional inefficiencies in the asylum system and 

will result in unfairness to refugees and their families—in the best case—and denial 

of protection to deserving refugees at worst. For the reasons detailed above, the 

Lawyers Committee for Human Rights urges that the effort to enter into a ‘‘Safe 

Third Country’’ agreement with Canada be abandoned. 

To the extent such an agreement is pursued, we urge that it focus only on eliminating duplicative claims, where this is appropriate. In this case, the exceptions 

should be expanded to include asylum seekers who (i) have merely transited 

through one country, (ii) have family, including cousins or other relatives, or other 

community ties in one country, and/or (iii) would be ineligible for asylum in one 

country but would be eligible in the other.

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PREPARED STATEMENT OF THE LUTHERAN IMMIGRATION AND REFUGEE SERVICE

Lutheran Immigration and Refugee Service (LIRS) believes that the Agreement 

Between the Governments of Canada and the United States for Cooperation in the 

Examination of Refugee Status Claims from Nationals of Third Countries, also 

known as the ‘‘Safe Third Country’’ Agreement, is not in the best interest of the 

United States and will undermine the international protection of refugees. 

BACKGROUND ON LIRS

The mission of LIRS is to provide ‘‘New Hope and New Life’’ to uprooted immigrants and refugees in our midst. LIRS has a long history of service to refugees, 

asylum seekers, and other vulnerable immigrants. Since 1939, more than 250,000 

refugees have been resettled into the United States under Lutheran auspices. Over 

the years, the work expanded to help asylum seekers, long-term legal permanent 

residents, and people in INS detention. In 1999 alone, LIRS resettled 13,000 refugees, many from the former Yugoslavia where ethnic cleansing through murder and 

torture were endemic. In 2000, LIRS served detainees from 136 countries. Throughout the years, the agency has maintained an excellent reputation among its peers 

and an excellent working relationship with the U.S. government agencies assigned 

to deal with refugee and immigration concerns. 

THE ‘‘SAFE THIRD COUNTRY’’ AGREEMENT IS NOT IN THE BEST INTERESTS OF THE

UNITED STATES

A. A violation of the principle of burden-sharing. 

The agreement will place a significant burden on the U.S. asylum adjudication 

system, and will add to the already overwhelming backlog of cases facing the Immigration & Naturalization Service (INS). Canada states that in 2001, over 14,000 

asylum seekers transited through the US before seeking asylum in Canada. By contrast, past figures show that only about 200 come from Canada to apply in the U.S. 

These numbers may not predict exactly but they give us a very good indication of 

what we can expect in the future. All of this would happen during a time when the 

INS is already going through tremendous upheaval and internal restructuring, and 

has proven that it cannot handle even current caseloads. 

B. Creation of serious problems with Canada where none exist 

The agreement has the very grave potential to create immense problems on our 

northern border and hurt relations with Canada. There are many real and important reasons why a person fleeing persecution and true threats to life and liberty 

would choose Canada over the United States when seeking protection through the 

asylum process. Among these are communal, linguistic and familial ties that would 

help the refugee survive in strange land. A process that disregards the refugee’s 

right to choose will exacerbate the problem of human trafficking and smuggling. As 

the possibility of legal entry into the country is eliminated, refugees will become 

more vulnerable to persons ready to exploit them. A situation could develop on the 

Canadian border similar to the one that exists on the US-Mexico border, where an 

escalation of death, exploitation and border enforcement is the rule. Many will be 

forced to go ‘‘underground’’ completely. In addition, disputes over process or border 

policy between Canada and the U.S. could easily arise. The U.S. would face the twofold problem of increased criminality by those who see an opportunity in the smuggling of asylum-seekers, and creation of hostilities between two nations that have 

traditionally enjoyed harmony and cooperation. 

C. The agreement could hurt the security of the United States. 

If the agreement is intended to address security concerns, as some argue, this is 

not the answer. We have a system that works. No terrorists would submit themselves to the scrutiny of the current asylum process. Presently, persons in the US 

who wish to make a claim in Canada present themselves at a border point and are 

examined by an immigration officer. An orderly process exists. The agreement will 

disrupt that process and create a dangerous and disorderly one. 

THE AGREEMENT ERODES OUR NATION’S COMMITMENT TO THE PROTECTION OF HUMAN

RIGHTS

A. The Right of a Refugee to Choose 

The agreement takes away the refugee’s right to choose the country in which to 

make a claim. This is contrary to internationally agreed upon principles of protection for refugees, specifically the UNHCR Executive Committee Conclusion #15 

which states ‘‘asylum should not be refused solely on the ground that it could be 

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sought from another state’’, and that ‘‘the intentions of the asylum seeker as regards 

the country in which he wishes to request asylum should be as far as possible be 

taken into account’’. Furthermore, the assumption that the country of ‘‘last presence’’ is the most appropriate place for the claim to be made results in a Safe Third 

Country agreement that is fundamentally flawed. Persons who have been forced to 

flee in order to survive have experienced tremendous loss and upheaval. They have 

lost their homeland, family members, friends, communal support systems, home, 

property, and more. They have to a great degree lost the power to make decisions 

about their own lives. Factors in a particular country such as the presence of extended family members and/or friends, familiarity with the language, cultural connections and other forms of communal support are all important to the refugee’s 

ability to adjust to a new country. Therefore, a person seeking protection should be 

allowed to choose where they make their claim. 

B. Differences between the U.S. and Canadian systems 

The agreement presupposes equal and comparable procedures and standards used 

in refugee determination in both countries. In fact, there are important differences 

in immigration enforcement, asylum procedure and asylum law that result in a denials of refugee claims in one country that would be accepted in the other. For example,

(1) The U.S. has expedited removal, which drastically limits access to hearing 

of asylum claims. Canada has no such practice.

(2) The U.S. government provides no legal counsel for asylum seekers. In Canada, asylum seekers are provided with legal counsel.

(3) The U.S. enforces a one-year deadline to present a claim. Canada has no 

one-year deadline.

(4) Regarding substantive law, Canadian officials have pioneered the conceptual protection framework for women persecuted on account of gender. In 

the U.S. there is minimal protection for women making gender-based 

claims.

A Georgetown University study shows that without counsel, an asylum seeker 

would be six times as likely to fail in his claim as someone who is represented 

(Georgetown University, Institute for the Study of International Migration, ‘‘The 

State of Asylum Representation’’ May 2000). Further, The Center for Gender and 

Refugee Studies concludes that ‘‘any agreement requiring Canadian-bound seekers 

to make their claims in the United States has the potential to lead to denials of 

protection and to the return of women asylum seekers to their persecutors, in violation of international law.’’

Another major difference is that in the U.S. asylum seekers are detained by immigration enforcement officials, often for extended periods of time. In Canada, asylum 

seekers are generally not detained. Detention is not a benign solution. Asylum seekers suffer greatly in detention, especially those who are children or survivors of torture. Lengthy detentions and the impact of imprisonment often result in asylumseekers abandoning their claims, not because of a lack of merit or fear of persecution, but because they detention becomes unbearable. 

C. Implementation Problems 

The agreement itself will be extremely difficult, if not impossible to implement. 

Not only will it create a bureaucratic nightmare, it does not explain what the process will be at the border, does not account for what will happen to the refugee during the process, does not explain how eligibility for the exceptions will be quickly 

and fairly determined, among other concerns. LIRS has previously submitted 

lengthy comments outlining some of the many implementation and processing problems this agreement will create. Just a few examples follow: 

Allowances have been made for persons who have family members in the other 

country, but even these do not take into account the problems related to verification 

of relationship and the resulting hardship on applicants who may have to wait undetermined amounts of time as they wait for a determination. What kind of documentation or testing will be required? Will applicants be held in detention while determination is awaited? Other problems exist. The agreement states that the relative of the applicant must be at least 18 years of age in order to facilitate family 

reunification; this hurts families where the applicant is a parent seeking to join a 

child or children under the age of 18 in the territory of the other party. The agreement states that family members are required to have a particular status in order 

for the exception to apply; student and temporary worker status should be included 

in the category of family member immigration status but are not. 

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Persons in transit through a U.S. airport could be determined to be in the U.S. 

and forced to make their claim here regardless of their reasons for wanting to reach 

Canada. 

The agreement has no provisions dealing with the needs, circumstances and procedural issues that ensure the fair and humane treatment of unaccompanied or separated minors throughout the entire process. 

Adjudication is not clearly defined, and as the agreement is written it could very 

likely hurt an applicant’s chance to access a fair hearing and all appeals. As it is 

written, adjudication could simply mean a decision concerning eligibility, which 

could result in chain deportations after one of the countries find a claimant ineligible. Adjudication should not include expedited removal, which offers fewer procedural protections than regular asylum hearing, but this is not addressed. 

Difference in eligibility between the two countries need to be addressed in order 

to prevent the denial of access to a fair hearing. For example, the U.S. requires that 

a claim be made within a year of arrival in the U.S. This fails to take into account 

the difficulties involved in making a claim, including fear and trauma, health problems, incompetence due to age or mental illness, lack of legal assistance or timely 

information concerning law and procedures involved in making a claim, and other 

factors. 

There are so many problems with the language of the agreement that they appear 

to be insurmountable and ultimately, the ones who will suffer the most will be the 

asylum seekers the system is intended to protect. 

THE AGREEMENT IS UNNECESSARY AND THERE IS AN EASIER WAY

The agreement is unnecessary, and in fact will create more problems than it will 

solve. If the reason the US wants this agreement is to avoid duplicate claims of asylum, the problem is more easily solved through a more focused and simpler agreement that prohibits individuals from pursuing asylum in both countries and that 

provides for the confidential information-sharing that identifies rejected applicants. 

Even so, no proof has ever been offered that duplicate claims are even a problem. 

CONCLUSION

The preamble to the agreement emphasizes the desire of both countries to honor 

the commitments made to the protection of refugees. LIRS urges that any Safe 

Third Country agreement be explicit and thorough in assuring that this is in fact 

done. This agreement does not meet that standard and creates more problems than 

it purports to solve. Thank you for consideration of our concerns.

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