This week, a federal court in Toronto, Canada, is hearing from plaintiffs arguing the US is not a safe place for asylum-seekers.

The lawsuit concerns a “safe-third country” agreement that the US and Canada signed shortly after 9/11, in 2002.

Under the agreement, people who arrive in either country asking for asylum must apply in whichever country they arrive in first. So if asylum-seekers living in or transiting through the US go to a border crossing with Canada and say they want to apply for asylum there, they can be turned back — and must apply for asylum in the US instead. There are certain exempted categories, including people with close relatives in Canada. The agreement does not apply to US citizens.

Janet Dench, executive director of the Canadian Council for Refugees, said for those whom Canada turns back toward the US, “in many cases, unless they have a visa that gives them the right to be in the United States, they have a very strong risk of being detained in the United States” by US Customs and Border Protection. 

Her group, along with Amnesty International Canada and the Canadian Council of Churches, is asking the Canadian court to strike down the agreement. Their case has been joined with a group of individuals from El Salvador, Syria and Ethiopia who requested asylum at US-Canada border crossings in 2017. The hearing began Monday.

Dench argues asylum-seekers returned to the US face prolonged detention in harsh conditions and are potentially held in the same jails as criminal defendants. Seeking asylum is not a crime under US domestic and international law. Dench also points to how the Trump administration has chipped away at eligibility for asylum. Under Trump, the US has narrowed its interpretation of who qualifies for refugee status — meaning the US would deny many asylum seekers' claims despite potential dangers they may face if returned to their home countries.

“Generally speaking, people fleeing domestic violence as well as people fleeing gang violence would not meet the refugee definition, and so, that is likely to mean that many women who need protection will not be granted it in the United States,” she said, adding that they could receive protection under Canada's criteria.