“A Complete Corruption in Morality”: U.S. Family Separation and the Canada-U.S. Safe Third Country Agreement Commentary
Official White House Photo, Feb. 13, 2017
“A Complete Corruption in Morality”: U.S. Family Separation and the Canada-U.S. Safe Third Country Agreement
Edited by: Kelly Cullen

To separate kids from their parents is an act that is so deplorable and so inhumane, it speaks to a complete corruption in morality of this administration. . .

Jagmeet Singh, Canada’s New Democratic Party Leader

The US is violating its own human-rights obligations through some of its recent immigration-related actions, most shockingly its removal of 3,000 (reported numbers have varied) immigrant children from their families. Other countries must now consider whether their continued support of the US makes them complicit. This post calls on Canada to rescind the Canada-US Safe Third Country Agreement. This agreement, explained more below, is based on an assumption that Canada and the US are equally safe countries for refugees, and recent actions by the US Government refute that assumption.

The US is increasingly unsafe for refugees.

US President Donald Trump has made no secret of his hostility towards immigrants, or at least towards certain immigrants, often using rhetoric around so-called “illegal immigrants” to describe people in different situations, including refugee claimants. His “Muslim Ban” has created major controversy, as the most recent iteration was just upheld by the Supreme Court of the United States in Trump v Hawaii. Trump has made countless disturbing statements, such as when he complained about immigrants coming from “shithole countries.” The New York Times reported that Trump had suggested that people coming from Haiti have AIDS, and that immigrants from Nigeria would never “go back to their huts,” both statements that the White House later denied. Earlier, Trump infamously said “[w]hen Mexico sends its people, they’re not sending their best … They’re sending people that have lots of problems … They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

This last statement was made in support of his notorious planned wall along the US-Mexico Border. In the meantime, US officials have set up increasingly invasive checkpoints, often quite far from the US Border, in places like Maine and New Hampshire. People are being randomly stopped and ordered to produce proof of citizenship. In June 2018, Trump posted on Twitter that people who entered the country “illegally” should be immediately deported, with no court proceedings.

Even against that chilling backdrop, the US Government’s removal of nearly 3,000 children, under its “Zero Tolerance Policy,” sent shockwaves around the world. The facts have been widely reported, but they are facts that speak for themselves in terms of the horror of this policy. An audiotape of children, purportedly some of those taken from their parents and crying in distress, was widely circulated. Images of groups of children in cages, with foil sheets and sleeping on floor mats, sparked outrage. Older children were reportedly having to care for the younger children in cages with them, including changing diapers. In some cases, parents were given no notice, or were told their children were being taken for baths, and then the children were removed. One mother says she was told that the children were being taken away for “the crime of crossing the Border.” A breast-feeding baby was reported removed from her mother, who was handcuffed for resisting the removal. It is not clear if this was the same mother who testified that she had been raped by the police in her native country and had fled after they threatened to kill her and her family. Her children, including one who was still breast-feeding, were taken, and she was so distraught about the separation that she was having difficulty articulating her refugee claim. A reporter who witnessed this testimony confirmed that no distinction was being made, under this policy, for refugee claimants, who were separated from their children, criminally charged, and only then given the opportunity to make their claims.

Another mother said that, when her toddler was returned to her after 85 days, he was dirty and full of lice, as if he had not been bathed the entire time – this incident happened a few months before the Zero-Tolerance Policy was announced. As controversy over family separations raged, the Government announced plans to erect tent cities in the desert, where the temperature regularly reaches 100 F/40 C, to hold hundreds of children.

Rachel Maddow, of MSNBC, became emotional and could not continue when reporting that children as young as infants were to be sent to places called “Tender Age” facilities. The trauma to the children is substantial, with one person describing a three-year-old boy, who was waiting to be reunited with his family, as “just a shell of himself.” A four-year-old girl from Guatemala, who had been cared for by other children in her cell, was so traumatized that she was not speaking and was “just curled up in a little ball.” The American Academy of Pediatrics warned that the trauma of the separation could cause permanent damage. Children thus separated have been required to appear alone in immigration court (although this is not a new scenario for unaccompanied minors).

The Government initially defended this practice. Attorney General Jeff Sessions went so far as to cite the Bible as justification for the separations. Trump did finally sign an Executive Order in late June, stopping further separations (although the Order was controversial for other reasons), after encountering substantial condemnation. Two days after he signed the Executive Order, Trump tried to change the focus to different families – appearing with parents whose children were killed, some in traffic accidents, by “illegal” immigrants. In apparent response to the outrage over his separation of families, Trump tweeted “[w]e cannot allow our country to be overrun by illegal immigrants as the Democrats tell their phony stories of sadness and grief.”

It took a federal court judge to force the Government to work towards reunifying the families already separated. On June 26, the court ordered the Government to provide telephone communications by July 6. All children under age five were ordered reunited by July 10, and the remaining children were ordered reunified by July 26. Another court order required the Government to release children after 20 days. The Government complained that the combined effect of these orders was to require them to release the families.

Government officials clearly had no reunification plan and had not even bothered to track the children it removed, with reports that they were using DNA to determine which children belonged to which parents, after records went missing, and, in some cases, were destroyed. Some of the parents had already been deported without their children. Other parents had been released, with the Government apparently not tracking where they went. The Government was unable to meet the short-term deadlines set by the court. In asking for more time, the Government said it was necessary “given the complexities involved in locating individuals who have been removed, determining whether they wish to be reunified with their child, and facilitating such a reunification outside of the United States.” On July 10, the judge had to remind the Government that the deadlines were “not aspirational goals.” The Government tried to require the families to pay reunification costs, and again the US court intervened, ordering the government to pay. On July 16, the judge temporarily paused deportations of families after reunification, as the American Civil Liberties Union expressed concern over information that mass deportations of reunited families were planned.

US Government officials have congratulated themselves on their concern for the children’s welfare. The slow pace of reunification, they said, was the result of their primary concern about the children. One official, after the reunification deadlines had been missed, said: “[i]t is one of the great acts of American generosity and charity, what we are doing for these unaccompanied kids who are smuggled into our country or come across illegally.” The Government has also made it clear that it is seeking new laws and ways around the court order. Trump is still showing no compassion for the traumatized children, and certainly no remorse for having separated families, commenting that the way to prevent families from being separated was not to come into the country illegally. It certainly should not be assumed that US immigration policy going forward will be any less cruel than it has been.

Neighbors Respond

What, then, is the responsibility of other countries? In June 2018, Mexico had a strong response, asking the United Nations to intervene, describing the family separations as “cruel and a violation of human rights.”

Canada has had a more muted response. Prime Minister Justin Trudeau has refused to heed growing calls to rescind an agreement with the US, called the Canada–United States Safe Third Country Agreement, officially the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries. This agreement generally provides that refugee claimants must make their claims in the first of the two countries in which they arrive, with some exceptions, supposedly to stop forum shopping. Many claimants at the US- Canada Border are thus sent back to the US for disposition of their claims.

The Safe Third Country Agreement was signed while the Bush Administration’s torture program was in full swing and has always been controversial. That controversy has escalated since the Trump inauguration, as have the number of refugees crossing the US-Canada Border. Canadian media have carried stories of people walking in winter into Quebec, some suffering terrible injuries from frostbite.

On June 18, 2018, as stories of the family-separation policy shocked the world, Canadian Prime Minister Justin Trudeau initially refused to criticize the policy, suggesting that doing so would be “playing politics,” and insisting that the US remains a safe country for immigrants. He also said that Canadians did not expect him to intervene.

Trudeau somewhat amended that position during a heated exchange in the House of Commons on June 20, 2018, after intense pressure regarding his prior comments. Even then, though, he expressed reluctance to take action, telling reporters that same day, “[w]e take action based on facts and not based on fears or worries …”

Member Jenny Kwan confronted Trudeau, saying: “… the fact is that over 2,000 migrant children are already in baby jails. The parents do not know where they are or when they will see them again … Does the Prime Minister recognize that as long as Trump is in power, the US will never be a safe country for asylum seekers?”

Hours before Trump signed the Executive Order, Trudeau finally acknowledged that the US policy was “wrong.” During the exchange in Parliament, though, he remained vague about the Agreement, saying “[a]s I have said many times, the safe third country agreement (sic) is over 10 years old. We will continually look for ways to modernize it and be in conversation with the Americans on this. We will continue as well to closely monitor developments in the United States.”

Some speculate that Trudeau is reluctant to take on this issue because he is dealing with an escalating trade dispute with the US That dispute, however, cannot overshadow Canada’s response to this distressing human-rights issue. Several organizations, including Amnesty International, the Canadian Council for Refugees, and the Canadian Council of Churches, have filed a legal proceeding in Canadian federal court, ultimately seeking to force rescission of the agreement and providing extensive and compelling evidence that the US is not safe for refugees.

Concerns over US immigration policy are not new. The open hostility of the Trump administration to immigrants, including refugees, however, has led to devastating human-rights abuses. If children can be torn from their families, potentially permanently, and imprisoned, then the US is not safe for refugees. This policy is not the only reason the US is not safe, but it is enough of a reason on its own. By continuing to cling to a fiction to the contrary, Canada risks being complicit in those abuses. Jagmeet Singh, leader of Canada’s New Democratic Party, said it well: “[t]o separate kids from their parents is an act that is so deplorable and so inhumane, it speaks to a complete corruption in morality of this administration.”

Canada’s obligations are clear.

Maureen T. Duffy is an associate professor of law at University of Calgary Faculty of Law with an extensive background in human rights research, including being awarded the O’Brien Fellowship for Human Rights and Legal Pluralism and a Social Sciences and Humanities Research Council of Canada Fellowship for her doctoral research.

Suggested citation: Maureen T. Duffy, “A Complete Corruption in Morality, JURIST – Academic Commentary, Jul. 17, 2018, https://www.jurist.org/commentary/2018/07/maureen-duffy-corrupt-morality.

This article was prepared for publication by Kelly Cullen, the JURIST Managing Editor. Please direct any questions or comments to him at commentary@jurist.org

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