Asylum seekers fleeing U.S. may find cold comfort in Canada's courts

Migrantswho applied for asylum in the United States but then fled north,fearing they would be swept up in President Donald Trump'simmigration crackdown, may have miscalculated in viewing Canadaas a safe haven.

That is because their time in the United States could countagainst them when they apply for asylum in Canada, according toa Reuters review of Canadian federal court rulings on asylumseekers and interviews with refugee lawyers.

In 2016, 160 asylum cases came to the federal courts afterbeing rejected by refugee tribunals. Of those, 33 had beenrejected in part because the applicants had spent time in theUnited States, the Reuters review found.

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Lawyers said there could be many more such cases among thethousands of applicants who were rejected by the tribunals inthe same period but did not appeal to the federal courts.

The 2016 court rulings underscore the potentially precariouslegal situation now facing many of the nearly 2,000 people whohave crossed illegally into Canada since January.

Most of those border crossers had been living legally in theUnited States, including people awaiting the outcome of U.S.asylum applications, according to Canadian and U.S. governmentofficials and Reuters interviews with dozens of migrants.

Trump's tough talk on illegal immigration, however, spurredthem northward to Canada, whose government they viewed as morewelcoming to migrants. There, they have begun applying forasylum, citing continued fears of persecution or violence intheir homelands, including Somalia and Eritrea.

But Canadian refugee tribunals are wary of "asylum-shopping"and look askance at people coming from one of the world'srichest countries to file claims, the refugee lawyers said.

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"Abandoning a claim in the United States or coming to Canadaafter a negative decision in the United States, or failing to claim and remaining in the States for a long period of time those are all big negatives. Big, big negatives," said Toronto-based legal aid lawyer Anthony Navaneelan, who isrepresenting applicants who came to Canada from the UnitedStates in recent months.

The Canadian government has not given a precise figure onhow many of the border crossers were asylum seekers in theUnited States.

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But it appears their fears may have been misplaced. Trump's attorney general, Jeff Sessions, has said that anyone in theUnited States illegally is subject to deportation, but there isno evidence that asylum seekers with pending cases areconsidered illegal under the new administration.

'Lack of seriousness'

The asylum seekers will make their cases before Canada'srefugee tribunals, which rejected 5,000 cases last year.

Thetribunals' decisions are not made public, so the reasons are notknown. An Immigration and Refugee Board spokeswoman confirmed,however, that an applicant's time in the United States can be afactor in a tribunal's decision.

Rejected applicants can appeal to Canada's federal courts,whose rulings are published. The federal courts upheld 19 of the33 tribunal rejections they heard last year and recommendedfresh tribunal hearings for the other 14 cases.

The judges believed those claimants had a good explanationfor having been in the United States first. The outcomes of thenew tribunal hearings are not known.

The federal court handles only a small portion of allapplications rejected by the refugee tribunals. But overall, applicants who have spent time in the United States have ahigher chance of being rejected, said multiple immigrationlawyers, including two former refugee tribunal counsel,interviewed by Reuters.

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Last year, a federal judge upheld a refugee tribunalrejection of Sri Lankan man who had abandoned a pending U.S.
claim. The tribunal said the man's decision demonstrated a "lack of seriousness" and was "inconsistent with the expectedbehaviour" of someone who fears persecution in their own country.

A Chadian applicant lost his 2016 appeal because he did notclaim asylum "at the first opportunity" in the United States.

The asylum seekers who have crossed the U.S border sinceJanuary are still going through the claim process and many haveyet to go through tribunal hearings.

Well-founded fear?

Canadian officials want refugee applicants to behave theway they think people fleeing for their lives would behave, saidlawyer and researcher Hilary Evans Cameron.

Living undocumentedin the United States for years or abandoning a pending claim, asmany people among this latest refugee influx have done, are notseen as consistent with that fear, she said.

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Those with failed U.S. asylum claims must prove to Canadiantribunals that the U.S. courts were wrong in their assessment,that their circumstances have changed for the worse, or thatthey qualify in Canada, several lawyers said.

Crucially, all applicants must show that the often years-oldfears that led them to leave their home countries for the UnitedStates still exist.

Canada grants asylum if applicants qualify under the UnitedNations' definition of someone who has a well-founded fear ofpersecution based on certain criteria, such as race, religion,nationality or political affiliation.

A federal judge ruled in March that the deportation of aHonduran family, who had lived in the United States for more
than three years, could go forward after immigration officialsfound the family no longer faced a risk in Honduras.

"The longer they've been away [from their country oforigin], the more difficult it is to establish that they're a
refugee," said Winnipeg refugee lawyer Ken Zaifman.