Claudia Ensuncho Martinez, a domestic violence victim who attempted to claim asylum in Canada, was denied entry under the terms of the Safe Third Country Agreement. She and her son now fear deportation from the United States.Sara Stathas/The Globe and Mail
The case of a domestic violence survivor from Colombia who was denied entry to Canada and now fears deportation from the United States underscores the need for Ottawa to withdraw from a bilateral treaty limiting asylum claims at the border, critics say.
The Safe Third Country Agreement prohibits most asylum seekers who pass through the U.S. from claiming asylum in Canada, and vice versa. It is premised on both countries offering robust refugee protections.
Advocates have long argued that the U.S.’s refugee protections are far weaker than Canada’s. Those concerns have escalated since the election of President Donald Trump, who sought to limit asylum claims for gender-based persecution in his first term in office, and has deepened asylum restrictions across the board since his re-election.
Even before Mr. Trump’s re-election, a Canadian parliamentary committee on immigration twice called for people fleeing gender-based persecution to be exempt from the STCA – first in 2002, when the treaty was initially conceived, and then again in 2023.
The recommendations were never adopted by Ottawa.
On Thursday, The Globe and Mail reported on the case of Claudia Ensuncho Martinez, whose ex-partner stabbed her repeatedly with a knife, nearly killing her. In 2024, after leaving Colombia and travelling through the United States, she claimed asylum at the Canadian border. She was refused entry under the terms of the STCA.
Ms. Ensuncho Martinez and her son, 11, now fear deportation from the United States, where gender-based asylum claims are rarely recognized.
Canada does not track the reasons why people arriving at its land border are seeking asylum, making it impossible to know how many are fleeing gender-based persecution.
Gauri Sreenivasan, the co-executive director of the Canadian Council for Refugees (CCR), called the case of Ms. Ensuncho Martinez “instructive, if tragic, because it is not unique to see women in the U.S. who are barred from accessing protection unfairly.”
“Our strong tradition of upholding the importance of gender equality and the protection for gender-based persecution should just point to the bankruptcy of the agreement,” she said, referring to the STCA.
CCR, along with Amnesty International Canada and the Canadian Council of Churches, are part of an ongoing legal challenge to the treaty, arguing it violates the equality provisions in the Canadian charter. A federal court hearing date has not yet been set, Ms. Sreenivasan said.
Ottawa has said in its submissions in the case that its “ongoing monitoring” confirms America “affords a full and fair risk assessment to all claimants, including women.”
In a statement to The Globe, Immigration, Refugees and Citizenship Canada spokesperson Remi Lariviere said the Safe Third Country Agreement “remains an important tool for our two countries to work together on the orderly management of asylum claims along our shared border.”
“Canada continuously monitors U.S. asylum policies, practices, and human right records as part of its designation in accordance with our legal obligations.”
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This week, U.S. Attorney General Pam Bondi issued a new binding decision rejecting the asylum case of a Honduran woman fleeing domestic violence. The decision resurrects a legal precedent set under President Trump’s first term in office, and will now “effectively shutter” domestic violence survivors’ access to protection in the United States, a statement from the University of California College of the Law’s Center for Gender & Refugee Studies (CGRS) said.
“This is a brazen power grab by Trump’s Justice Department – an attempt to rewrite our laws to deny protection to women and families escaping deadly violence,” said CGRS director Professor Karen Musalo.
The STCA gives Ottawa the power to create exceptions for certain groups or individuals when it is deemed in the public interest to do so. The only existing public interest carve-out is for refugee claimants who have been charged or convicted with an offence that could subject them to the death penalty.
In 2023, a report from the parliamentary committee on immigration recommended a new public interest exemption be created for people fleeing gender-based persecution, allowing them to claim protection in Canada even if they had passed through the U.S.
The committee, chaired by Liberal MP Salma Zahid, noted in 2023 that then-President Joe Biden had reversed some of the punitive measures imposed on gender-based violence survivors during Mr. Trump’s first term in office. But the report said there was “still concern regarding the viability of gender-based claims made on American soil.”
During the committee proceedings, expert witnesses testified that domestic violence survivors faced particular hurdles in gaining asylum in the U.S., because American immigration courts imposed a restrictive test on gender-based cases, as well as a one-year filing deadline on asylum claims.
That deadline disproportionately impacted gender-based claims because many domestic and sexual violence survivors must overcome significant trauma and cultural stigma to speak about their experiences, the committee heard.
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In its response at the time, the federal government said it rejected the need for a public interest exception for gender-based violence survivors since “Canada believes that the U.S. refugee protection system meets international standards.”
The U.S. and Canada’s differences on gender-based asylum claims have dogged the STCA since the treaty’s inception over two decades ago.
In 2002, the parliamentary committee on immigration conducted a study of the then nascent agreement, which had not yet come into force. The study noted the immigration department’s own regulatory impact analysis conceded the two countries had “different approaches” when it came to gender-based persecution, particularly on the issue of domestic violence.
As a result, the committee recommended that domestic violence survivors be exempt from the STCA “until such time as the American regulations regarding gender-based persecution are consistent with Canadian practice.”
New Democrat MP and immigration critic Jenny Kwan said the lack of government action on “repeated recommendations and suggestions” from the 2023 committee, which she sat on, makes Canada “complicit in the persecution of these individuals.”
The bilateral refugee treaty now faces renewed scrutiny in light of President Trump’s mass deportation campaign, which has raised significant concerns about detention conditions and due process for those in removal proceedings.
“Our position is Canada should withdraw from the agreement,” said Ms. Sreenivasan. “The U.S. is not safe for refugees.”
As of the end of August, more than 61,000 people were in immigration detention in the U.S., exceeding the highest detention levels of President Trump’s first term in office.
Asylum acceptance rates in immigration court have plummeted since President Trump was inaugurated in January, particularly for unrepresented claimants – around 90 per cent of whom have been rejected over the past three months.