Angel Jenkel in London, Ont., on July 15. A Federal Court judge recently halted the removal of Mx. Jenkel – a non-binary American from Minnesota − in what could be a precedent-setting decision.Geoff Robins/The Globe and Mail
Joycna Kang is a partner and Benjamin Merrill is an articling student at Battista Migration Law Group, an LGBTQ immigration firm based in Toronto.
The Canadian refugee process is often praised for its fairness, efficiency and commitment to human rights. It is the main avenue for trans and non-binary people around the world to seek safety after fleeing persecution in their countries of nationality. But for trans and non-binary Americans who fear for their lives in the United States, the ability to access Canada’s refugee system is far less clear. So far, it seems, the Canadian government is less willing to acknowledge the threats facing trans and non-binary people throughout the U.S.
Recently, however, Justice Julie Blackhawk at the Federal Court of Canada halted the removal of Angel Jenkel – a non-binary American from Minnesota − in what could be a precedent-setting decision, citing the recent changes in conditions in the U.S. for queer and trans people.
The ruling criticized Immigration, Refugees and Citizenship Canada for its failure to consider recent evidence concerning conditions in the U.S. for trans and non-binary individuals when assessing the risk of being returned. It was also an important example of the ineffectiveness of Pre-Removal Risk Assessments (PRRAs) in protecting trans and non-binary Americans from removal.
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A PRRA is a process available to some individuals facing removal from Canada, offering them an opportunity to demonstrate that they would be at risk of persecution or in physical danger should they return to their country of nationality. PRRA outcomes are issued by immigration officers, who have a high level of discretion in making their decision. Indeed, there are concerns regarding how immigration officers differ in their assessments – in addressing the complexities of harm in an evolving landscape like the U.S., individual officers are not always equipped to provide the necessary attention that each case requires.
While Justice Blackhawk’s decision provides hope that our immigration and refugee system is willing to acknowledge the lived reality of trans and non-binary Americans, it also showed the limit of using stay proceedings to help at-risk individuals stay in Canada, which is what happened in the Jenkel case. In a stay proceeding, the individual remains in Canada but does not have access to a work permit or any government social services. A stay is also limited in scope, only granting a temporary pause on a case-by-case basis. To address this, Canada should explore alternative avenues for protection, such as a temporary public policy for deferral of removal.
A temporary public policy, like a stay of removal, serves as a mechanism to delay or prevent deportation under specific circumstances. They can differ significantly in terms of their purpose, application and duration, but a temporary suspension-of-removal policy could offer a meaningful – albeit short-term – solution for trans and non-binary Americans who fear being removed to the U.S. Under this type of policy, the Canadian government can temporarily change or suspend certain immigration requirements in response to international crises, with targeted immigration measures for specific groups of people. Set for a limited timeframe, the Canadian government can reassess the policy and, if necessary, extend it until circumstances change.
Temporary public policy measures are nothing new. Canada has previously implemented such measures to respond to crises around the world. In 2024, following a drastic rise in sexual and gender-based violence toward vulnerable refugee women in Mexico, then-minister of citizenship and immigration, Marc Miller, instituted a temporary public policy to provide exemptions from the requirements set out in the Immigration Act for a three-year period, to offer an immediate avenue for protection for these women.
A temporary public policy implemented in 2022, and renewed several times over, was created for the resettlement of vulnerable Afghan nationals – including LGBTQ people.
In 2021, following Beijing’s crackdown on democratic freedoms in Hong Kong, Canada created special immigration pathways tailored to young professionals and recent graduates, including open work permits and permanent residency streams.
These programs demonstrate that Canada can act decisively when democratic values are under threat abroad. Why should our neighbours south of the border who are fleeing authoritarianism be any different? If we are to remain steadfast in the democratic values we hold tightly, Canada must enact a temporary public policy deferral of removal for trans and non-binary Americans in Canada.
Justice Blackhawk’s decision, pointing out the “flawed and unreasonable” assessment of the immigration officer in the Jenkel case is a powerful statement on the situation in the U.S., and a signal that the Canadian government must take the lived reality of trans and non-binary Americans seriously.
The question isn’t whether we can afford to act – it’s whether we can afford not to.