Quests for Canada carry US cost

Asylum-seekers drawn to Canada often wait in US. Lacking visas, they face jail. Move by Canada may help

Every year, thousands of people cross the US border, eager to start new lives.

But a number of these people are not trying to get into the world's largest melting pot of immigrants; they are trying to leave, setting their sights on Canada.

They often employ a strategy, however, that lands them in prolonged US detention at taxpayer expense - and that has at times ruffled US-Canada relations. An expected move by Canada in the coming weeks may make it easier for asylum-seekers to get in.

Canada has a reputation for generosity, having accepted 44 percent of its applicants for asylum in 1997. Its southern neighbor looked favorably upon just 22 percent of its applicants.

And unlike the United States, Canada allows asylum-seekers access to welfare, jobs, medical benefits, and government-sponsored lawyers.

About half of the 24,000 people who applied for asylum in Canada last year transited through the US, into which there are many more flights from their countries of origin. This has caused consternation on both sides of the border.

The US Immigration and Naturalization Service (INS) has been detaining some of these "transitors" who arrive in the US from other countries without visas, fearing such individuals might claim to be heading to Canada only to stay in the US and become undocumented illegal aliens.

The Rev. John Long, director of Vive, an organization in Buffalo, N.Y., that assists Canada-bound asylum-seekers, says it is absurd that the INS is detaining noncriminals who do not want to be in the US. Many of them, he says, escaped torture in their native countries only to land in jail in New York.

INS spokesman Andrew Lluberes responds, "You do not have the right to be in the United States illegally in order to pursue an asylum application with a third country."

Meanwhile, some Canadians see their welfare system stretched by asylum-seekers who had a chance to apply in another haven. They point out that the United States may have a lower acceptance rate but has more applicants and therefore grants asylum status to twice the number of people.

In fiscal year 1997, more than 22,000 people got positive reviews in the US. The Canadian figure was about 10,000.

"The policy of the government of Canada is that if people are in need of protection, they should seek protection whenever they arrive in a country that can extend protection," says one Canadian immigration official. If they arrive in the US first, they should pursue their claim there, he says.

"Once people are in Canada, we have no choice but to give them access to our system," he adds.

Finding access to the system might become easier in the coming weeks when guidelines are issued to make an entry application for asylum-seekers a one-step process along its entire border.

For many aiming for Canada, the problem is getting in to make a case for staying. Often, people come to the US illegally and then try to head north.

In order to come to the US legally, an individual must have either a visa or refugee status arranged by the United Nations or an embassy with an INS program, explains Lynne Partington, the executive director of Freedom House, a shelter in Detroit that helps people apply for asylum across the border. "Most people do not have the luxury of doing that. The embassies are being watched, or there's no embassy... So they come with false visas or no visas," she says.

CANADA as a rule does not detain people unless they have been found to be a public threat. A 1951 convention, which both Canada and the US signed, states that people fleeing persecution should not be punished on account of their illegal entry.

According to the United Nations refugee agency's guidelines, this exemption from detention covers "a person who transits to an intermediate country for a short time without having applied for or received asylum there."

But in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, requiring that anyone without documentation be held and placed in "expedited removal."

"In all fairness to the INS, it's the way the law is written. It doesn't give them leeway, it doesn't give them discretion," says Deborah Greitzer, a lawyer who works at Vive.

Charles Namakando says that his sole intention of being in New York is to escape persecution in Zambia and move to Canada, where his wife and two daughters live. Ms. Greitzer has asked the INS district director in New York to release Mr. Namakando from the Wackenhut Detention Facility in Queens, N.Y., so that he may apply for asylum in Canada. But INS officials are not convinced that Namakando's motive is to leave the US.

They note that Namakando is also scheduled for a hearing before an immigration judge, indicating he is applying for US asylum at the same time.

That's the Catch-22. People who want to leave the US often apply for asylum there as protection against deportation to their native country. "His only option to avoid deportation, legally, is to request asylum in the United States, which is not what he wants," Greitzer says.

So many detainees are sending mixed signals to the INS, asking a judge to release them so that they can head to Canada while applying for asylum in the US concurrently.

This approach can backfire. Mustafa Merza, a Syrian national, was incarcerated for more than 13 months. Mr. Merza had walked from Buffalo to Canada, where he filled out required entry forms. But at this border point, unlike the one near Detroit, asylum applicants must return to the US and wait two weeks for forms to be processed. When Merza recrossed the border he was caught by the INS.

He could have asked to be deported to another country besides Syria but only if that third country would have taken him.

The INS would be more than happy to deport a person to a third country. "The Immigration and Naturalization Service has nothing to gain by keeping any person in detention one day longer than is required by the law," says INS spokesman Russell Bergeron Jr.

Indeed, the INS has fewer than 1,000 people in detention. But when facilities housing noncriminal detainees, such as Wackenhut, are full, asylum-seekers can be sent to county jails. It can cost $59 a day to detain someone in Snyder County Jail and $128 at Wackenhut.

And Canada may allow people to apply for asylum once they are within or at its borders, but it is unlikely to issue visas to people requesting deportation.

"The chances of a Canadian Embassy issuing a visa to someone so that they can come and apply for asylum is nil," says a lawyer who asked not to be idenitified. As a result, some people still find themselves in US detention facilities, even though the INS would rather not be keeping them there.

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