Frontier Justice

by Andy Lamey

  48 “the mindless view that conscientious disobedience” Ronald Dworkin, “Civil Disobedience,” in Taking Rights Seriously, second edition (Cambridge, Mass.: Harvard University Press, 1978), p. 206. For a similar view see John Rawls, “The Justification of Civil Disobedience,” in Collected Papers, Samuel Freeman, ed. (Cambridge, Mass.: Harvard University Press, 1999).

  49 A study of church sanctuary in Canada Marina Jiménez, “Historic Crypt Becomes Sanctuary for Failed Refugee Claimant, 68,” Globe and Mail, September 25, 2004.

  50 the tens of thousands of asylum cases that the United States accepted during the same six-year period In the early 1980s the United States did not keep national statistics for asylum claims made in the context of deportation hearings, which has traditionally been a substantial number. This means it is impossible to say how many refugees were granted asylum (as opposed to resettled from overseas) between 1981 and 1986. The American Council for Nationalities Service records 15,342 successful asylum cases filed with the Immigration and Naturalization Service for the limited period June 1983 through September 1985. As this figure includes many cases involving more than one person, spans only a 27-month period and does not include any successful claim filed before judges in deportation hearings, “tens of thousands” is likely a reasonable overall estimate for the five years in question. American Council for Nationalities Service, Refugee Reports, December 13, 1985, p. 3.

  51 St.-Pierre United in Quebec City Rhéal Séguin, “Churches No Longer Safe Haven for Refugees,” Globe and Mail, March 9, 2004.

  52 Paris’s St. Bernard Church See Teresa Hayter, Open Borders: The Case Against Immigration Controls, second edition (London: Pluto Press, 2004), pp. 142–48.

  53 “Arendt could not have envisaged” Power, “The Lesson of Hannah Arendt,” p. 36.

  54 “see themselves not as ‘human beings in general’ ” Power, “The Lesson of Hannah Arendt,” p. 36.

  55 “professional idealists” and “The groups they formed” Arendt, Origins, p. 292.

  56 “The topic was hot pretty soon” Matthew Gibney interview, October 14, 2008.

  57 “In spite of the lofty rhetoric” Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), p. 2.

  58 “The detached perspective of the ‘philosopher’ ” Gibney, Ethics and Politics, p. 260. Gibney does not have Agamben and Derrida in mind, but his remark nonetheless applies to them.

  59 “have profound implications” Gibney, Ethics and Politics, p. 243.

  60 “Political leaders could attempt to establish” Gibney, Ethics and Politics, p. 246.

  61 a call that previous writers on refugee issues have made See James Hathaway and Alexander Neve, “Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection,” Harvard Human Rights Journal, vol. 10 (Spring 1997). For some provocative criticisms of Hathaway and Neve’s proposal see Peter Nyers, Rethinking Refugees: Beyond States of Emergency (New York: Routledge, 2006), p. 128.

  62 Refugees, Asylum-seekers and the Media Project See www.exiledjournalists.net, and Mike Jempson, “Truth Can Find Asylum,” Red Pepper, July 2004, p. 31.

  63 “one can assume that these judgements” Gibney, Ethics and Politics, p. 242.

  64 Malcolm Fraser, a former prime minister of Australia “Extended Malcolm Fraser Interview,” Letters to Ali, Special Features (Madman Films, 2005), DVD.

  CHAPTER 7: The Right to Have Rights

  1 It was Rwanda, 1994 For the background to events in Rwanda see Linda Melvern, Conspiracy to Murder: The Rwandan Genocide (New York: Verso, 2006), pp. 133–36.

  2 In Francine Peyti’s village Marta Young, “Responding to the Psychosocial Needs of Refugees,” in M. Loughry and A. Ager, eds., The Refugee Experience: Psychosocial Training Module, revised edition (Oxford: Oxford University Press, 2001). Francine and Paul Peyti’s names are pseudonyms.

  3 strewn across the floors of churches and schoolrooms “Rwanda Killers Leave a Village of the Dead,” New York Times, May 14, 1994.

  4 “whether or not the Charter or Rights and Freedoms” Barbara Jackman interview, autumn 2004. All subsequent Jackman quotes are from this interview.

  5 “You’re asking him to place his life” Victor Malarek, “Court Ruling on Refugees Wins Praise from Lawyers,” Globe and Mail, April 5, 1985.

  6 “You realize how big an element” Barbara Fryer, “New Oral Hearings Offer Clearer View of Refugees’ Status,” Globe and Mail, December 5, 1983. Canada’s system was also criticized for its slow processing times, with claims taking an average of three years to decide. As Fryer points out, this was partly due to the time involved in reviewing transcripts. See Victor Malarek, “Refugees Maze: Arrivals Face 3-Year Struggle through Choked System,” Globe and Mail, December 19, 1984, and “Smear Tactics Cited: India Pressing Canada on Refugees, Sikhs Say,” Globe and Mail, July 23, 1985. A general overview of the old system can be found in Ninette Kelly and Michael Treblicock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998), pp. 412–13.

  7 There have been court decisions in other countries After Germany introduced its asylum clause, German courts routinely recognized asylum-seekers as rights-bearing agents, but the practical effects of such decisions were minimal even before the asylum clause was amended. The closest American equivalent to Singh is INS v. Cardoza-Fonseca, a 1987 Supreme Court case that ruled that refugees can have a well-founded fear of persecution even when there is a less than 50 percent chance of that persecution occurring. The decision was an important win for refugees as it eased the standard of proof they had to meet to have a claim accepted. But even if Cardoza-Fonseca were applied to the letter, it would not rule out the use of deadlines or asylum applications being decided entirely according to paper evidence, two measures ruled out by Singh. As it stands, one of the lawyers who argued the case has suggested that it has subsequently been undermined by American asylum officers “who are not applying the deferential standard announced by the Supreme Court in Cardoza-Fonseca.” See Bill Ong Hing, “A Well-Founded Fear that INS V. Cardoza-Fonseca Has Been Circumvented,” Georgetown Immigration Law Journal, vol. 14. no. 3, p. 849.

  8 Appointed on the basis of patronage rather than merit For a thorough overview of this and related problems, see Francois Crépeau and Delphine Nakache, “Critical Spaces in the Canadian Refugee Determination System: 1989-2002,” International Journal of Refugee Law, vol. 20 no. 1 (2008): 50-122. In 2010 the Canadian government passed the Balanced Refugee Reform Act, which reformed the appointment process to the body that hears refugee claims, the Immigration and Refugee Board.

  9 “Canadian ideas and Canadian constitutionalists” Frederick Schauer, “The Politics and Incentives of Legal Transplantation,” Working Paper No. 44, Center for International Development at Harvard University, April 2000, p. 12.

  10 “curb the human tendencies” Denis Smith, Rogue Tory: The Life and Legend of John G. Diefenbaker (Toronto: Macfarlane Walter and Ross, 1997), p. 343.

  11 “rights were only what Parliament declared” Smith, Rogue Tory, p. 347.

  12 “a timid and tepid affirmation” The critic is Bora Laskin. Quoted in Smith, Rogue Tory, p. 343.

  13 “a new atmosphere favorable” Julius Grey, “Immigration Law Combines Lofty Principles, Few Rights,” Gazette (Montreal), May 27, 1985.

  14 A 1965 government report Report of the Royal Commission on Bilingualism and Biculturism, by A. Davidson Dunton and André Laurendeau.

  15 “plans for legislation which we realized” Quoted in Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: Cambridge University Press, 2004), p. 117.

  16 16 percent success rate compared to 36 percent Government Accounting Office, “Asylum: Approval Rate for Selected Applicants” (Washington, D.C., 1987), p. 2.

  17 U.S. claimants in general are four to
six times more likely Audrey Macklan, “The Value(s) of the Canada-U.S. Safe Third Country Agreement” (Toronto: Caledon Institute of Social Policy, 2003), p. 23.

  18 detaining asylum-seekers is “inherently undesirable” Office of the United Nations High Commissioner for Refugees, “UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” February 1999.

  19 This places them among the truly destitute U.S. Committee for Refugees, Refugee Reports, June 30 1996, p. 6.

  20 “Norway’s acceptance rate for people” Daniel Stoffman, “Fixing the Refugee Mess,” Maclean’s, December 16, 2002, p. 26.

  21 “We are spending too much” Stoffman, “Fixing the Refugee Mess,” p. 27.

  22 “Anybody who claims their life is in danger” Daniel Stoffman interview, autumn 2004. All subsequent Stoffman quotes are from this interview.

  23 Costa Ricans made 3,357 refugee claims Citizenship and Immigration Canada, “Facts and figures 2007—Immigration Overview: Permanent and temporary residents,” http://www.cic.gc.ca/english/resources/

  statistics/facts2007/temporary/27.asp, last accessed December 31, 2008.

  24 it would create a “refugee dividend” John C. Thompson and Joe Turlej, “Other People’s Wars: A Review of Overseas Terrorism in Canada,” Mackenzie Institute Occasional Paper, June 2003, p. 132.

  25 its total recognition rate climbs from 2 to 33 percent United Nations High Commissioner for Refugees, 2005 UNHCR Statistical Yearbook: Trends in Displacement, Protection and Solutions (Geneva, 2007), p. 446. In practice, temporary permits have often turned out not to be temporary. When recipients get married, enrol their children in school and put down other roots, they develop social networks that can apply pressure on politicians to have their status made permanent. Conversely, when temporary permits are genuinely temporary, they are often criticized because they can leave people in limbo for years, unable to make long-term plans for the future. See Jan-Paul Brekke, “The Dilemmas of Temporary Protection: The Norwegian Experience,” Policy Studies, vol. 22, no. 1, pp. 5–18.

  26 acceptance rate for 2001 as 47 percent Benjamin Dolin and Margaret Young, “Canada’s Refugee Protection System,” http://dsp-psd.tpsgc.gc.ca/Collection-R/LoPBdP/BP/bp185-e.htm#appendix1tx, last accessed December 31, 2008.

  27 The so-called Progress Party See Tor Bjørklund and Jørgen Goul Andersen, “Anti-immigration parties in Denmark and Norway: the Progress Parties and the Danish People’s Party,” in Martin Schain, Aristide Zolberg & Patrick Hossay, eds., Shadows Over Europe: The Development and Impact of the Extreme Right in Western Europe (New York: St. Martin’s Press, 2002). There are also differences between Canada and Norway when it comes to the procedures they use to decide refugee claims (in Norway, for example, initial interviews are conducted by the police), which may also influence the two countries’ acceptance rates.

  28 “the extremely low level of [permanent] refugee recognition” Philip Rudge, “The Need for a More Focused Response: European Donor Policies Toward Internally Displaced Persons (IDPs),” Norwegian Refugee Council, 2002, p. 33.

  29 “Nations that absorb the most refugees” Quoted in G. Jeffrey MacDonald, “Stranded in an Unwelcome Land: Millions of Refugees Fled Their Homelands Only to Find No Willing Host Country,” Christian Science Monitor, July 22, 2004, p. 13.

  30 Not a plausible way of determining Another problem with averaging international acceptance rates is that receiving countries receive claims filed by people from different source countries.

  31 “The genocide against the Tutsi” Fiona Terry, Condemned to Repeat? The Paradox of Humanitarian Action (Ithaca, N.Y.: Cornell University Press, 2002), p. 3.

  32 Help refugees abroad at the expense of those Canada’s commitment to helping asylum-seekers did not prevent it from also helping overseas refugees in 2001. That year it was the 14th largest donor to UNHCR on a per capita level. This was behind Norway, which was number one, but better than most other governments. See United Nations High Commissioner for Refugees, UNHCR Global Report 2001, (Geneva: UNHCR, 2002), p. 24.

  33 twenty-three such claims were recognized in the United States U.S. Department of Homeland Security, Office of Immigration Statistics, “Table 21: Refugees and Asylees Granted Lawful Permanent Resident Status by Region and Selected Country of Birth, Fiscal Years 1946–2003,” 2003 Yearbook of Immigration Statistics (Washington, D.C., 2004), p. 72.

  34 “If Ernst Zundel is a refugee” Rex Murphy, “Let’s Try Zundel Denial,” Globe and Mail, February 22, 2003.

  35 “Every time he has a hearing” “Show Zundel the Door,” Toronto Star, April 3, 2003. For defences of Zundel’s right to receive a hearing, see Alex Neve, “The Case Is Troubling, but the Principle Is Clear,” Globe and Mail, February 22, 2003, and the remarks of Janet Dench of the Canadian Council for Refugees quoted in Allan Thompson, “Zundel Haunts Us Still,” Toronto Star, April 21, 2003.

  36 “An interviewer at the airport” Philip Schrag, A Well-Founded Fear: The Congressional Battle to Save Asylum in America (New York: Routledge, 2000), p. 156. Schrag also discusses at length the introduction of deadlines in regard to American asylum claims and the problems this has resulted in.

  37 the case of Libardo Yepes Eric Schmidt, “When Asylum Requests Are Overlooked,” New York Times, August 15, 2001; Alexander Greenawalt, attorney for Libardo Yepes, correspondence with the author, November 19, 2008.

  38 “It appears that an order issued by an immigration inspector” U.S. Commission on Immigration Reform, Becoming an American: Immigration and Immigrant Policy (Washington, D.C., 1997), p. 110.

  39 “I was on the board of a Catholic newspaper” Quoted in Joe Fiorito, “Celebrating 15 Years of Hope in Canada,” Toronto Star, June 16, 2006.

  40 “Human rights, she was saying” Mary Jo Leddy interview, June 2005. All subsequent Leddy quotes are from this interview.

  41 a great falling-away from Singh and what it represents. See F. Pearl Eliadis, “The Swing from Singh: the Narrowing Application of the Charter in Immigration Law,” Immigration Law Reporter, Second Series, Vol 26. (1995), pp. 130–47.

  42 it would be impossible to enforce Interview with Janet Dench, Canadian Council for Refugees, August 30, 2005. A side deal to the Safe Third Country Agreement commits Canada to accepting 200 refugees a year from the United States. The Canadian Council for Refugees has suggested that this is likely so that the U.S. can resettle Haitian refugees interdicted on the high seas. The CCR opposes this aspect of the agreement (as it does the deal overall). See Canadian Council for Refugees, “CCR Denounces Secret Side-Deal,” July 12, 2002, http://www.ccrweb.ca//sidedeal.html, last accessed January 2, 2009. In my view, however, this aspect of the agreement is worth keeping, in order to provide an alternative to forced repatriation to Haiti for at least some refugees.

  43 from 25,500 in 2004 to 19,740 the next year United Nations High Commissioner for Refugees, “Asylum Levels and Trends in Industrialized Countries, 2007,” Geneva, March 18, 2008, p. 38.

  44 “Sometimes they think, you’re working for the government” Gustavo Neme interview, June 2005. All subsequent Neme quotes are from this interview.

  45 Exemptions, however, have been granted in a halting and piecemeal fashion. “Terrorism Related Inadmissibility Grounds Backgrounder,” Refugee Council USA, July 28, 2009.

  46 “a significant departure from both international law” Canadian Council for Refugees v. Canada, 2007 FC 1262, p. 75.

  47 “We are somewhat surprised” Nicholas Keung, “Refugee Rights ‘Vindicated’ by Court Ruling,” Toronto Star, November 30, 2007.

  48 “Given the position of the UNHCR” Canada v. Canadian Council for Refugees, 2008 FCA 229, p. 35.

  49 “While the scale of US support” Gil Loescher, Alexander Betts and James Milner, The United Nations High Commissioner for Refugees (UNHCR): The Politics and Practice of Refugee Protection in the Twenty-first Century (New York: Routledge, 2008), p. 95.

  50 “safeguarding the confidence o
f donor governments” Gil Loescher, “The UNHCR and World Politics: State Interests vs. Institutional Autonomy,” International Migration Review, vol. 35, no. 1 (2001), p. 50.

  51 85 percent of asylum claimants in Canada Peter Showler, Refugee Sandwich: Stories of Exile and Asylum (Montreal: McGill-Queen’s University Press, 2006), p. 228.

  52 “I haven’t studied this” Howard Adelman interview, autumn 2004. All subsequent Adelman quotes are from this interview. In addition to the phenomenon Adelman notes, refugees have been prevented from reaching Canada due to interdiction efforts of other countries. For examples see “European Court of Human Rights, Jabari v. Turkey, Judgement of 11 July 2000,” International Journal of Refugee Law, vol 12 no. 4, 597-607; and Richard Dunstan, “United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention,” International Journal of Refugee Law, vol. 10 no. 1-2 (1998), 205-213. Both articles describe cases of individuals seeking to travel to Canada to file a refugee claim, only to be stopped at a European airport. In both cases, the individual in question was later recognized as a refugee (by the UNHCR in Turkey and the British government respectively).

  53 66,000 people slated for removal For a general discussion of Canada’s removal policies, see chapter 7, “Detention and Removal of Individuals—Canada Border Services Agency,” in Office of the Auditor General of Canada, May 2008 Report of the Auditor General of Canada (Ottawa, 2008), p. 15.

  54 they disappear 70 percent of the time Matthew Gibney and Randall Hansen, “Deportation and the Liberal State: The Forcible Return of Asylum Seekers and Unlawful Migrants in Canada, Germany and the United Kingdom,” UNHCR, February 2003, p. 11.

  55 total underground population estimated at 100,000 Matthew Gibney and Randall Hansen, “Asylum Policy in the West: Past Trends, Future Possibilities,” United Nations University/World Institute for Development Economics Research, Discussion Paper No. 2003/68, 2003, p. 4.

  56 “The restrictiveness of the liberal state” Gibney and Hansen, “Deportation and the Liberal State,” p. 14.