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Why A U.S.-Canada Agreement Encourages Some Asylum Seekers To Cross Illegally05:24
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This sign marks the Canadian side of the border at one rural area where many people are crossing illegally from New York into Canada. Mamadou was in the woods somewhere within 20 miles of here. (Kathleen Masterson/VPR)
This sign marks the Canadian side of the border at one rural area where many people are crossing illegally from New York into Canada. Mamadou was in the woods somewhere within 20 miles of here. (Kathleen Masterson/VPR)
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Mamadou is 45 years old. He fled his native country, Cote d'Ivoire, 10 years ago, escaping a brutal civil war. We’re not using his full name for his protection.

He applied for asylum status in the United States, but was denied. Still, U.S. authorities deemed it unsafe to return him to his country, so he says he was granted temporary permission to stay here. Back home in Cote d’Ivoire, his father was killed by rebels and his home was burned to the ground.

Mamadou worked as a taxi driver in New York City for the last decade. But at the end of February, Immigration and Customs Enforcement agents began showing up at his home to arrest him.

Mamadou says if he were to be deported back to his country, he would be killed.

"Then I see I have no choice, because I'm no longer safe in U.S. And they say they are going to deport me [to] my country, and when I go I'm gonna be killed," Mamadou says, speaking from a detention center in Quebec.

How he got to Canada is a dangerous and complex story. After the agents came to deport him, Mamadou fled New York City and made his way to the Canadian border, north of Plattsburgh, New York.

When he presented himself to Canadian border authorities, they denied him a hearing to seek asylum, citing procedural reasons. That's because the Safe Third Country Agreement prohibits refugees who are already in the U.S. from applying for asylum in Canada.

So the Canadian authorities turned Mamadou back to the U.S. Then, around 6:30 that evening, he says, "I decide to walk in the forest to Canada, and it was so cold, the snow everywhere. I don't know which direction I was going, I was just walking. I fall in the river two times."

Mamadou walked through the snowy woods in freezing temperatures for nine hours. He encountered two rivers he could find no other way around. The first was shallow, but he says the second river was deep and wide. After that crossing he says his body became dangerously cold.

It was so dark he couldn't even see the tree branches until he felt them whip his face. He says he saw a streetlight in the distance, and he walked for nearly three hours before he reached the street.

"Then I saw a stop sign reading 'Arretez.' I said, 'Oh, arretez, that's a French word, maybe this is Canada.' "

At that point, he says his whole body collapsed. The rest of the story he doesn't remember, until he woke up in a hospital bed.

"His clothes froze on him, basically, and they had to be cut off when he was brought to hospital," says Mamadou's lawyer, Eric Taillefer.

Mamadou says a police officer found him lying unconscious in the street, and after realizing he was still alive, the officer brought Mamadou to the hospital. It took six days for him to regain the ability to speak and move his limbs, during which time he was handcuffed in his hospital bed.

"Since he officially made a claim once, he cannot claim again," Taillefer says. "So we have a one claim rule here in Canada, so once you've made it, you can't do ever again -- for life."

Mamadou first tried to enter Canada at this border checkpoint, north of Plattsburgh, New York, but he was turned back to the U.S. after it was determined he didn't meet any of the exceptions to the Safe Third Country Agreement. (Kathleen Masterson/VPR)
Mamadou first tried to enter Canada at this border checkpoint, north of Plattsburgh, New York, but he was turned back to the U.S. after it was determined he didn't meet any of the exceptions to the Safe Third Country Agreement. (Kathleen Masterson/VPR)

Because Mamadou first approached the border in a legal fashion, presenting himself to Canadian authorities at the checkpoint, Mamadou inadvertently jeopardized his own chances of applying for asylum in Canada.

If he had simply walked through the woods first, crossing the border illegally between checkpoints, he could have arrived in Canada, and made his first asylum claim then. That's what hundreds of refugees who are fleeing the U.S. are doing.

But because he didn't know about the Safe Third Country Agreement, his claim was denied without ever getting a hearing in front of a judge.

Stories like Mamadou's have some Canadian lawyers calling for the Safe Third Country Agreement to be revoked.

Toronto attorney Jared Will recently filed a lawsuit in Canada, arguing that the agreement is illegal under Canadian law.

"The basic argument is that the U.S. doesn't respect the refugee convention or the convention against torture, and that it should never have been designated as a safe third country by Canada — but certainly now the designation should not persist," he says.

Will says there are a number of problems in how the U.S. handles refugees that could deem the country unsafe. For one, the U.S. bars people from making asylum claims if they've been in the country over one year.

If the U.S. isn't considered a safe country, then he argues Canada shouldn't be able to deny asylum seekers the right to apply in Canada simply because they already landed in the U.S.

"The constitutional question," Will says, "is whether it's a breach of a refugee claimant's right to life, liberty and security of the person in Canada to deny them the right to assert a refugee claim here, in circumstances where their ability to assert that claim in the United States is compromised."

Will's clients are a Syrian woman and her three children. Like Mamadou they also presented themselves at a border checkpoint, not knowing about the agreement.

The lawsuit is still in its infancy. Will says it could be several months before he hears back from the courts if he has an arguable case.

Mamadou's lawyer is also considering challenging the Safe Third Country Agreement, and he is in talks with Will about joining his lawsuit against the Canadian government.

This story comes via the New England News Collaborative, and was first published by Vermont Public Radio

This segment aired on March 22, 2017.

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