Migrants who applied for asylum in the United States but then fled north, fearing they would be swept up in President Donald Trump's immigration crackdown, may have miscalculated in viewing Canada as a safe haven.
That is because their time in the United States could count against them when they apply for asylum in Canada, according to a Reuters review of Canadian federal court rulings on asylum seekers and interviews with refugee lawyers.
In 2016, 160 asylum cases came to the federal courts after being rejected by refugee tribunals. Of those, 33 had been rejected in part because the applicants had spent time in the United States, the Reuters review found.
Lawyers said there could be many more such cases among the thousands of applicants who were rejected by the tribunals in the same period but did not appeal to the federal courts.
The 2016 court rulings underscore the potentially precarious legal situation now facing many of the nearly 2,000 people who have crossed illegally into Canada since January.
Most of those border crossers had been living legally in the United States, including people awaiting the outcome of US asylum applications, according to Canadian and US government officials and Reuters interviews with dozens of migrants.
Trump's tough talk on illegal immigration, however, spurred them northward to Canada, whose government they viewed as more welcoming to migrants. There, they have begun applying for asylum, citing continued fears of persecution or violence in their 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's richest countries to file claims, the refugee lawyers said.
"Abandoning a claim in the United States or coming to Canada after 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 is representing applicants who came to Canada from the United States in recent months.
The Canadian government has not given a precise figure on how many of the border crossers were asylum seekers in the United States.
But it appears their fears may have been misplaced. Trump’s attorney general, Jeff Sessions, has said that anyone in the United States illegally is subject to deportation, but there is no evidence that asylum seekers with pending cases are considered illegal under the new administration.
'Lack of seriousness'
The asylum seekers will make their cases before Canada's refugee tribunals, which rejected 5,000 cases last year. The tribunals' decisions are not made public, so the reasons are not known. An Immigration and Refugee Board spokeswoman confirmed, however, that an applicant’s time in the United States can be a factor in a tribunal’s decision.
Rejected applicants can appeal to Canada's federal courts, whose rulings are published. The federal courts upheld 19 of the 33 tribunal rejections they heard last year and recommended fresh tribunal hearings for the other 14 cases.
The judges believed those claimants had a good explanation for having been in the United States first. The outcomes of the new tribunal hearings are not known.
The federal court handles only a small portion of all applications rejected by the refugee tribunals. But overall, applicants who have spent time in the United States have a higher chance of being rejected, said multiple immigration lawyers, including two former refugee tribunal counsel, interviewed by Reuters.
Last year, a federal judge upheld a refugee tribunal rejection of Sri Lankan man who had abandoned a pending US claim. The tribunal said the man's decision demonstrated a “lack of seriousness” and was “inconsistent with the expected behavior” of someone who fears persecution in their own country.
A Chadian applicant lost his 2016 appeal because he did not claim asylum “at the first opportunity” in the United States.
The asylum-seekers who have crossed the US border since January are still going through the claim process and many have yet to go through tribunal hearings.
Canadian officials want refugee applicants to behave the way they think people fleeing for their lives would behave, said lawyer and researcher Hilary Evans Cameron. Living undocumented in the United States for years or abandoning a pending claim, as many people among this latest refugee influx have done, are not seen as consistent with that fear, she said.
Those with failed US asylum claims must prove to Canadian tribunals that the US courts were wrong in their assessment, that their circumstances have changed for the worse, or that they qualify in Canada, several lawyers said.
Crucially, all applicants must show that the often years-old fears that led them to leave their home countries for the United States still exist.
Canada grants asylum if applicants qualify under the United Nations' definition of someone who has a well-founded fear of persecution based on certain criteria, such as race, religion, nationality or political affiliation.
A federal judge ruled in March that the deportation of a Honduran family, who had lived in the United States for more than three years, could go forward after immigration officials found the family no longer faced a risk in Honduras.
"The longer they’ve been away (from their country of origin), the more difficult it is to establish that they’re a refugee," said Winnipeg refugee lawyer Ken Zaifman.