Canadian and American flags fly near the Ambassador Bridge at the Canada-USA border crossing in Windsor, Ont. on March 21, 2020.Rob Gurdebeke/The Canadian Press
Asylum seekers rebuffed at the Canadian border and returned to the United States are increasingly being detained there, a shift in policy that critics say calls into question the Safe Third Country Agreement, a long-standing bilateral treaty premised on both countries being safe for refugee claimants.
In a statement to The Globe and Mail, a spokesperson for U.S. Customs and Border Protection confirmed that it is now the organization’s policy to place asylum seekers and migrants redirected from Canada into custody and transfer them to an Immigration and Customs Enforcement facility for removal from the country.
This follows sweeping immigration changes ordered by U.S. President Donald Trump in January, ending the previous administration’s policy, under which many asylum claimants were released from custody to await formal hearings.
Asylum claimants and migrants handed over by Canadian border officials will now be detained except on “rare occurrences where it may not be feasible to transfer the subjects to an ICE facility,” CBP spokesperson Steven Bansbach said in the statement.
Migrants and asylum claimants crossing the Canadian border, particularly single adults, have always faced the possibility of detention if they were returned to the U.S. But refugee advocates – who have long challenged the legality of the treaty between Canada and the United States – say the new landscape now presents extreme risk, including rapid deportation from the U.S. or prolonged family separation.
“Given what we’re seeing happening in the United States, we are concerned that it is no longer a safe country for asylum seekers,” said Aisling Bondy, president of the Canadian Association of Refugee Lawyers.
CBP does not publish data on detentions or releases at the northern border. But the impact of Mr. Trump’s policy shift is clear. Detention statistics published by ICE show that the number of people paroled across the country dropped from more than 4,300 people in October, 2024, to 25 people in March.
Under the terms of the Safe Third Country Agreement, asylum seekers arriving at either land border must claim protection in the first safe country they enter. This means people seeking sanctuary cannot pass through the U.S. to make refugee claims in Canada and vice versa.
However, some claimants are eligible for exemptions, including unaccompanied minors, people with relatives in Canada, and certain “public interest” cases, such as people who may face the death penalty in the United States or their home country.
Jenn McIntyre, co-ordinator of the Canada-US Border Rights Clinic, which provides legal assistance to those seeking protection at the border, said that prior to Mr. Trump’s January orders, her organization rarely heard from people detained in the U.S. after being returned under the bilateral agreement.
“Now, we regularly hear from individuals or families in the custody of Customs and Border Protection or ICE. Many are likely to be quickly removed from the U.S., some to situations where they face imminent risk,” she said.
Since the policy shift, more than 500 asylum seekers have been redirected back to the U.S., either at official ports of entry to Canada or at irregular land crossings, according to Canada Border Services Agency (CBSA) data requested by The Globe in March. The U.S. border agency did not say whether these individuals had been detained.
Elizabeth Orozco-Vasquez, chief executive officer at Freedom House Detroit, which provides shelter and legal support for refugees and asylum seekers, said her organization is aware of around 100 cases in the Detroit area in which people were detained in the U.S. after being sent back by Canadian authorities in recent months.
Ottawa-based immigration and refugee lawyer Heather Neufeld said she is representing a family sent back to the U.S. after their request for an exemption was rejected by Canadian border officials. Ms. Neufeld said the family had strong documentation showing that they had relatives in Canada.
In a statement, CBSA said it was unable to comment on individual cases, but that the burden of proof for exemptions rests on claimants. Officers consider all relevant information, including statements and documentary evidence, the statement said.
The family was detained by U.S. Border Patrol for more than two weeks, Ms. Neufeld said. Standards issued by the U.S. border agency for these holding facilities say people should generally not be held there for longer than 72 hours. But this may vary depending on space available in federal facilities.
The mother was released with an ankle monitor along with her children, after CBP said they no longer had room for the family, Ms. Neufeld said. The father was transferred to ICE detention.
“I fear he will soon be deported back to their home country,” she said.
While border patrol agents previously had some discretion to release non-citizens from custody, they can no longer do so without approval from the Deputy Chief of the Border Control, confirmed Mr. Bansbach, the CBP spokesperson.
Alex Vernon, an assistant professor at the University of Detroit Mercy School of Law and the director of its Immigration Law Clinic, said there are long-standing concerns over the treatment of asylum seekers in the U.S. But he called U.S. border authorities’ new approach a “huge shift.”
“They’re taking away a lot of local discretion to make decisions as to who’s a flight risk or not,” he said. “That’s obviously concerning.”
Refugee advocates are worried about CBP detention because these facilities are meant to be short-term holding spaces, and it is often difficult to contact detainees in custody there, Ms. Orozco-Vasquez said.
Ruby Robinson, managing attorney at the Michigan Immigrant Rights Center, said he was recently unable to contact a client for almost a week while they were detained at a CBP facility in Detroit.
Barriers to legal support once in CBP detention are particularly problematic for asylum claimants seeking to enter Canada under existing exemptions, Ms. Neufeld said.
Some 1,900 exemption requests were granted by Canadian authorities in January and February, data requested by The Globe show, predominantly because the claimants had family members in Canada.
But many asylum seekers do not know what documentation is required to prove eligibility, Ms. Neufeld said. Without a lawyer, it is nearly impossible to challenge a negative decision, she added.
Asylum seekers have the right to request judicial reviews of decisions by Canadian border authorities, and such reviews could take months to go through court, Ms. Neufeld said. Claimants risk being deported from the U.S. before a Canadian court can rule on their case.
Claimants can also request a reconsideration from CBSA, but there is no streamlined process for doing so, Ms. Neufeld said.
“Now, when Canada hands someone over to CBP, they are putting that individual directly at risk of being deprived of their liberty.”
The Safe Third Country Agreement came into effect in 2004, but has been subject to several legal battles. In 2020, a federal court ruled that the treaty was unconstitutional, but the decision was overturned at the appellate court.
In 2023, the Supreme Court ruled that the agreement could stand because it contained “safety valves” such as exemptions for some asylum seekers.
The courts have yet to rule on whether the treaty is discriminatory toward people fleeing gender-based persecution, since these refugee claims are often denied in the U.S.
In a statement, a spokesperson for Immigration, Refugees and Citizenship Canada said the government uses a robust framework to monitor policy south of the border, and said the U.S. continues to meet the legal criteria of a safe country at this time.
“We cannot speculate on future policy decisions,” the statement said. “We do not comment on internal U.S. government measures.”