An Afghan woman walks along the York Beltline Trail in Toronto, Ont. on July 23. Her family was detained by ICE in the U.S. after fleeing the Taliban.Duane Cole/The Globe and Mail
An Afghan family fleeing the Taliban and seeking to join relatives near Toronto are stuck in a “legal trap” after being detained by U.S. Immigration and Customs Enforcement, their lawyers say.
The family was eligible to cross into Canada by land from the U.S. to claim asylum because a close relative – a 32-year-old woman who previously worked for a Western aid organization in Afghanistan – was granted refugee status in Canada last year.
The Toronto woman hoped to reunite with the immediate family members she’d left behind in her home country. However, her father and two siblings are now in ICE custody in Texas, according to more than 400 pages of documents filed in their immigration case.
While the family would be eligible to cross into Canada by land, American officials have told their U.S.-based lawyer they will only permit them to travel to Canada by air.
That would require visitor visas, which are rarely issued to applicants who can’t demonstrate they will leave Canada after six months, or temporary resident permits (TRP) − which the family does not have, said their Toronto-based lawyers, Maureen Silcoff and Adam Sadinsky.
The Globe is not naming the family because they fear reprisal for speaking publicly and because of the risk they would face in Afghanistan should they be deported there.
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Most asylum seekers who travel through the U.S. are not eligible to cross into Canada by land to claim protection, because the Safe Third Country Agreement between the two countries requires claims to be lodged in the first safe country claimants reach.
However, the agreement provides a family reunification exception for people with close relatives who are legal residents in Canada.
Prior to U.S. President Donald Trump’s re-election, immigration enforcement agents had greater discretion to release asylum seekers from detention. This allowed eligible claimants to travel to the Canadian border and seek protection under exceptions to the Safe Third Country Agreement, Ms. Silcoff said.
“The U.S. asylum system has been turned on its head,” she said. “The Canadian government needs to respond accordingly, in a way that still upholds its international obligations to refugees.”
The Afghan family has now filed applications for temporary resident permits, which are granted on a case-by-case basis when someone is otherwise inadmissible to Canada.
The Toronto woman’s family left Afghanistan in January last year but could not fly directly to Canada since they did not qualify for a visitor visa. That left a land border crossing as the family’s only means of seeking asylum in Canada.
After brief stints in Iran and Brazil, the family reached the U.S.-Mexico border in May 2024, with the goal of reaching Canada. In their TRP submissions, the family said they waited several months to receive an asylum appointment through a U.S. Customs and Border Protection app that used an algorithm to assign a limited number of daily authorized border crossings. By late December, they still had not received an appointment and decided to cross unlawfully.
The Toronto woman’s father – who previously worked for the U.S. military in Afghanistan – along with her mother, two sisters and teenage brother, were subsequently detained by immigration enforcement agents.
Her mother and one sister were released shortly thereafter and were able to travel to the Canadian border. They have now made refugee claims here.
The three other family members remained in detention in the U.S., with no explanation as to why, Ms. Silcoff said. In January, Mr. Trump issued executive orders mandating ICE to incarcerate migrants while they awaited deportation and asylum hearings.
The family was placed in expedited removal proceedings by ICE and fear they will be imminently returned to Afghanistan. They are Hazara, an ethnic group and religious minority that is widely persecuted. They are also at risk because of their former employment with Western organizations.
In an interview with The Globe from ICE detention, the Toronto woman’s sister said she was currently incarcerated in a cell with 90 to 100 other women. She has not been permitted to leave their cell in around two weeks, she said.
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The woman, who previously worked as a nurse for a Western non-profit group in Afghanistan, said there is little medical care provided beyond nurses distributing acetaminophen.
The woman said she is particularly fearful for her father and brother, who are being held in a separate detention facility. Her father has diabetes and high blood pressure and her brother suffers from seizures.
The brother, 18, was admitted to hospital in late July but the family is struggling to access information about his condition and prognosis, Ms. Silcoff said.
Given the U.S.’s new mandatory detention policy, Ottawa needs to re-evaluate its approach for a small but vulnerable subset of asylum claimants who should be able to cross the Canadian border, said Toronto-based immigration lawyer Erin Simpson, who has a client in a similar situation to the detained Afghan family.
“Nobody knows exactly how big that pool of people is, but it’s a small pool,” she said.
The Canadian government could address the issue by providing travel documents to ICE detainees with valid asylum claims who can prove they have relatives in Canada, to ensure the family reunification provisions of the Safe Third Country Agreement are met, Ms. Simpson said.
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In a statement, Immigration, Refugees and Citizenship Canada spokesperson Mary Rose Sabater said the department could not comment on individual cases for privacy reasons, but said that exceptions contained in the Safe Third Country Agreement “consider the importance of family unity, the best interests of children and the public interest.”
“The STCA between Canada and the U.S. remains an important tool for our two countries to work together on the orderly management of asylum claims along our shared border,” the statement said.
The family’s relative in the Toronto area faced persecution in Afghanistan both because she is Hazara and because of her job supporting Afghan women as a psychosocial counsellor for a Western non-profit organization, documents from the Immigration and Refugee Board show. Three other siblings have also been granted refugee status in Canada.
The former counsellor was able to leave Afghanistan before other family members because she had a valid passport at the time, while they did not. With help from colleagues at the non-profit, she was able to obtain a humanitarian visa for Brazil, and travelled onward through Central America and the United States to Canada to claim asylum.
She now works at a factory in Toronto. In an interview with The Globe she said her loved ones – who had a home and good jobs in Afghanistan – lost everything to flee the Taliban.
The woman was able to obtain Brazilian humanitarian visas for other family members so they could take the same route to Canada.
Her father, brother, and sister are fighting their deportation from the U.S. by seeking a withholding of removal, a process that does not grant asylum but prevents deportation to a person’s home country if they will face persecution there. These proceedings have a higher burden of proof than claiming asylum, and can still result in deportation to a third country.