NTERPRETER

ELEASES®
eport and analysis of immigration

and nationality law

Vol. 73, No. 8

February 26, 1996

IN THIS ISSUE
WHO'S ON FIRST? THE CANADA-U.S. MEMORANDUM OF AGREEMENT ON ASYLUM, by Bill Frelick

19. Seminars 20. New Publications , 21. Position Opening 217

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I. Executive Order Mandates Debarment for Contractors Hiring Unauthorized Workers ... 2. Supreme Court Agrees to Review Ninth Circuit's Construction of Fraud Waiver Statute 3. "Golden Venture" Passenger Seeks Supreme Court Review of "Entry" Holding 4. Court Amends Opinion in § 212(c) Case After Certiorari Petition Filed $. Eleventh Circuit Amends Opinion on § 212(h) Coverage 6. State Dept. Admonishes Posts on Orphans Entering as Nonimmigrants 7. USIA Instructs on Au Pair Extension, Changes 8. State Dept. Finalizes Passport Rule for Minors 9. Delinquent Payments Prompt New INS Policy on Transportation Line Contracts 10. S tate Dept. to Repeal Obsolete Regulations II. INS Discusses Prohibited Self-Employment for TN Nonimmigrants 12. INS Announces Final Environmental Impact Statement for Detention Facility 13. ORR Modifies Refugee Assistance Grant Program Announcement 14. State Department Corrects Diversity Program Rule Effective Date ; IS. U.S., Mexico Conduct First Regional Immigration Meeting 16. BALCA Blurbs 17. Immigration Briefings: Computers and Information Technology in an Immigration Practice 18. Citations for Recently Reported Decisions

WHO'S ON FIRST? THE CANADA-U.S. MEMORANDUM OF AGREEMENT ON ASYLUM 225 by Bill Frelick* 226 226 227 230 231 233 233 234 234 235 235 236 236 236 236 ,. Bill Frelick is a Senior Policy Analyst for the U.S. Committee for Refugees in Washington, D.C., and co-editor of Refugee Reports. For more on this trend in Europe, see Kumin, "Asylum in Europe: Sharing or Shifting the Burden?" World Refugee Survey 1995, 28 (U.S. Committee for Refugees). In recent years, there has been a substantial reevaluation of certain standards governing the protection of refugees and asylum-seekers worldwide. In the U.S., that reevaluation has featured policy shifts in the handling of Haitian and Cuban asylum seekers, a revamping of the regulations governing asylum claims, and ongoing proposals for new legislation. Europe has also seen policy shifts and changing standards. One of the underpinnings of European asylum policy today is the so-called "safe third country" principle, whereby an individual is denied access to a substantive asylum adjudication on the grounds that he or she could have, or should have, ;ought protection elsewhere.' That principle might now be making inroads in North America. Late last year, the U.S. and Canadian governments released the details of a "Memorandum of Agreement" (MOA) designed to establish the responsibilities of the two governments for examining the asylum claims of persons traveling from one

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country to the other.l The two governments are planning to formally sign the MOA in April 1996. The key provision of the MOA is Article 6, which states that asylum claims will ordinarily be examined by the country of first arrival. For example, if a Sri Lankan arrives in Canada via the U.S. (and there are no direct flights from Sri Lanka to Canada), and attempts to apply for asylum in Canada, he or she could be returned to the U.S. to have the asylum claim examined here. The MOA borrowed from Europeans the notion that the country of first arrival ought, as a matter of course, to be responsible for examining the asylum claim. European governments. fashioned this operating principle in two multilateral agreements, the Dublin Convention- and the Schengen Agreemenr+, based not on any precedents in international law but rather as an expedient arrangement to ease the transition toward abolishing internal border controls and strengthening external controls. The result has not been a harmonization of asylum practices among the parties. Rather, Schengen and Dublin have caused an unseemly competition among the panies as each tries to outdo its neighbors in creating obstacles to prevent potential asylum seekers from first setting foot in its territory. Armed only with this precedent. Canada and the U.S. adopted the basic premise underlying Dublin and Schengen, but tried to improve upon the European experience by delineating more exceptions to the application of the country-of-first-arrival rule. In the MOA, these exceptions include the lawful presence of close family members in the second country; mere transit cases involving presence of less than 48 hours for air arrivals and 10 days for those who arrived in the first country by land or sea; persons with valid visas to the second country; certain cases of persons who spent extended periods of time in the second country; and unaccompanied minors for whom the best interests For more on the MOA, see 72 Interpreter Releases 1614 (Dec. 4, 1995). Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities (June 15, 1990), 30 LL.M. 427. Convention Applying the Schengen Agreement of 14 June 1985 Between the Governments of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at the Common Borders, June 19, 1990,30 I.L.M. 84.

of the child would be served by remammg in the second country. Despite these exceptions, the MOA nevertheless proceeds on the remarkable and unexamined presumption that governments ought primarily to make the determination where a refugee claimant should be allowed to seek asylum and that the basis for making that determination should be the country of first arrival. This article will argue that the MOA is based on fundamentally flawed assumptions about principles of protection; does not, in fact, address a real problem; and will create new problems where none now exist. It will also suggest a simpler, fairer alternative to this MOA that would more efficiently address the purported purpose of the agreement. THE POLICY REASONS FOR THE MOA

In a December 11, 1995 speech at the Carnegie Endowment for International Peace in Washington, D.C., Phyllis Coven, the director of the INS' Office of International Affairs and the U.S. government's spokesperson on behalf of the MOA, said that this type of agreement, based on the "safe third country principle," was contemplated in the INS' January 4, 1995 asylum reform regulations+ Noting that the regulations only permit an applicant to be denied asylum as a matter of discretion if there is a bilateral or multilateral agreement with safe third countries, Ms. Coven said that the U.S.-Canada MOA "will be the first such agreement to allow this new provision in the reform regulations to become effective.P Ms. Coven then explained why the U.S. decided to include this provision in the new asylum regulations and to conclude this agreement with Canada: The intent of the new regulation is to, first, discourage "asylum shopping" by asylum applicants and, secondly, encourage applicants to apply for asylum in the country that offers the first opportunity for effective protection.P 4 8 CFR § 208.14(e). See also 71 Interpreter Releases 1577 (Dec. 5, 1994); Butterfield, "The New Asylum Regulations: A Practitioner's Guide," 95-1 Immigration Briefings (Jan. 1995). Written statement: "Remarks of Phyllis Coven, Director of INS Office of International Affairs: The U.S.-Canada 'Memorandum of Agreement, ", Carnegie Endowment for International Peace, Dec. 11, 1995, at 3. Id. at 3. The term "asylum shopping" as used in this context means that an individual applies for

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Basing the MOA on this premise, however, is questionable. Although "asylum shopping" is cited as the principal problem, neither country has made a convincing case that it is a real problem between Canada and the U.S. Neither government has provided statistics to demonstrate that significant numbers of persons denied asylum in one country in fact travel to the other country to apply for asylum. U.S. NGOs (nongovernmental organizations) based on the northern border, such as VIVE, Inc. in Buffalo, New York, report that although a few of their clients have been denied asylum in the U.S. before entering Canada, the overwhelming majority are, in fact, principally seeking asylum in Canada and consider themselves to be transiting through the U.S. to reach their preferred destination, even if that transit is a long, slow process with frequent interruptions. I David Matas of the Canadian Bar Association's National Immigration Law Section, speaking at the same December II Carnegie meeting, pointed out that despite government claims that the MOA is intended to prevent asylum shopping. the agreement is not limited to claimants who have already had a decision from the other country.2 Rather, said Mr. Matas. the MOA covers persons who file their first claim in the country of second arrival. NIr. Matas observed: When the stated rationale for the agreement and the scope of the agreement diverge so significantly, there are two possibilities. One is that the governments have bungled, drafting an agreement that mismatched their intentions. The other is that they have a hidden agenda. Either possibility is disturbing and justifies giving the draft a close second look}

INTERNATIONAL STANDARDS

AND DOMESTIC

What of the solution for the supposed problem of asylum shopping? Is the requirement that an asylum claim be filed in the country of first arrival incorporated in the body of international standards for refugee protection, or is it even consistent with those principles? The answer, unequivocally, is "No." The internationally agreed upon principles of refugee protection are established and codified in formal conclusions reached by the Executive Committee (Extom) of the United Nations High Commissioner for Refugees (UNHCR), a body representing 50 governments, including the U.S. and Canada. ExCom Conclusion IS clearly states that "asylum should not be refused solely on the ground that it could be sought from another state.,,4 It states only that an asylum seeker may be called upon first to request asylum from another country if the asylum seeker has "a connection or close links" there. The Conclusion also states that such a course of action should only be pursued "if it appears fair and reasonable." There is no suggestion that the mere fact of having arrived in one country first establishes any' presumption of a connection or close links with that country. Most importantly. ExCom Conclusion 15 states that "the intentions of the asylum seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account." Governments are thus called upon, first and foremost, to respect the wishes of refugee claimants as to where they choose to seek asylum. Put simply: No ExCom conclusion states that the country of first arrival ought to be responsible for examining asylum claims-' On
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asylum in one country after being denied asylum in another. Oral presentation of VIVE staff at INS-NGO meeting on the MOA, INS Headquarters. Jan. 23. 1996. Most Canadian NGOs, led by the Canadian Council for Refugees (CCR). of which Mr. Matas was the former president. boycotted the Carnegie meeting. Mr. Matas. therefore. was not officially representing the CCR at Carnegie. but nevertheless raised manv of the concerns the CCR and other Canadian NGOs had been advancing. Matas. "Allocation of Refugee Claims." Paper presented at the Carnegie Endowment for International Peace. Dec. II. 1995, at 20.

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ExCom Conclusion No. 15 (XXXJI979). "Refugees Without an Asylum Country." in Conclusions on the International Protection of Refugees, Geneva: UNHCR, 1990, UN Doc. HCRJlP/2lEngfRev. 1989 at 39. The closest any of the conclusions come to such a statement is paragraph (k) in 1993 of the ExCom's annual "General Conclusion on International Protection." which recognizes the advisability of adopting common criteria and related arrangements for determining which state is responsible for considering asylum claims, but does not say that such arrangements should be based on the country of first arrival. The only reason this Conclusion gives for promoting responsibility agreements is to avoid "orbit"

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the contrary, even on the question of "irregular movement,"! ExCom conclusions presume the right of asylum seekers normally to claim asylum in the country of their choice. It is also noteworthy that ExCom Conclusion 58 on the irregular movement of refugees and asylum seekers does not acknowledge that governments may send persons back to a country where they have not already found protection (by having been granted asylum or refugee status).2 The Conclusion's core principle is that "refugees and asylum seekers, who have found protection in a particular country, should normally not move from that country in an irregular manner in order to find durable solutions elsewhere." (Emphasis added.) The Executive Committee did not choose a more expansive statement such as "who could avail themselves of the first opportunity for effective protection," but kept it limited only to prevent persons who had already found protection from moving irregularly to another state. This principle is reflected in the notion of "firm resettlement" in our own laws and regulations-' Neither refugee resettlement nor asylum is barred to persons who have lived and traveled in third countries. Only persons who have been "firmly resettled" in another country are expressly ineligible for admission as refugees to the U.S. under INA § 207(c)(I). Although the asylum statute, INA § 208, is silent on the question, regulations at 8 CFR § 208.15 and 208.14(d)(2) provide that firm resettlement constitutes a mandatory basis for denying asylum. Unlike the approach taken in the MOA, in U.S. law and regulation there is nothing casual or cavalier in the weight accorded to an asylum seeker's presence in third countries. Narrowing ineligibility strictly to situations. At present, however, there are no asylum seekers in orbit between the U.S. and Canada. If anything, the MOA would create rather than reduce orbit situations between the two countries. "Irregular movement" refers to the movement of individuals to another country without proper documentation. ExCom Conclusion No. 58 (XL), "Problem of Refugees and Asylum Seekers Who Move in an Irregular Manner from a Country in Which They Had Already Found Protection," in Conclusions on the International Protection of Refugees, Geneva: UNHCR, 1990, UN Doc. HCRflP/2fEngfRev. 1989 at 134. 8 CFR §§ 207.1(b)(c), 208.15.

firm resettlement in a third country properly limits the government's discretion to deny asylum on the basis of prior arrival in other countries. Firm resettlement means a very close connection indeed-the offer of permanent resident status, citizenship, or some other type of permanent resettlement. Even for persons who appear to have been firmly resettled, the U.S. has appropriately made allowances for persons who can show that they entered the third country where they were offered permanent protection only as a necessary consequence of their flight from persecution, stayed only as long as necessary to arrange onward travel, and did not establish significant ties. In Matter of Pula, the Board of Immigration Appeals (BIA) said that asylum should be granted to a national of Yugoslavia, despite his having transited through the Netherlands and having spent six weeks in Belgium.t The BIA did not suggest denying asylum because he could have applied in Belgium or the Netherlands, but said, rather, only that "it does not appear that he was entitled to remain permanently in either country." The BIA held that asylum should be granted as a matter of discretion because Mr. Pula had "no significant ties" to any other countries and because he had relatives in the U.S. who, with the exception of a sister, would not typically be characterized as "close" but who were found to be "particularly supportive and concerned about him." The Board went even further in Matter of Soleimani, when it said that "the question of resettlement is not always limited solely to the inquiry of how much time has elapsed since the alien's flight and the asylum application. Other factors germane to the question of whether the alien has firmly resettled include family ties, intent, business or property connections, and other matters.P (Emphasis added.) In Soleimani, the applicant was an Iranian Jew who had lived in Israel for 10 months before filing an asylum claim in the U.S. Under the Law of Return, Israel accords members of the Jewish faith the rights of permanent residence and citizenship. The BIA held that "a finding that an alien was firmly resettled in another country does not render him ineligible for a grant of asylum ... [if] the alien can demonstrate

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countervailing equities in his favor that are compelling in nature." The Board noted that: [T]here is no reference to firm resettlement in section 208 of the Act, and it is not part of the definition of 'refugee' in section 10 1(a)(42)(A). ... By regulation, a district director is precluded from granting asylum under section 208 to aliens who are firmly resettled in a third country.... However, this regulatory bar applicable to a district director does not prohibit an immigration judge or the Board from granting asylum to an alien deemed to have been firmly resettled. The applicable law and regulations, and the Pula and Soleimani decisions, suggest that, thus far, the U.S. has acted consistently with ExCom Conclusions 15 and 58, and has properly balanced respect for the intent of asylum seekers with an examination of the closeness of their connections to other countries. PRESERVING CHOOSE REFUGEES' FREEDOM TO

by Robert F. Barsky) His study sets out to answer what Mr. Barsky terms the Canadian Immigration and Refugee Board's "nearly inevitable questions (implied or stated), 'Why not the USA as target host country?', 'Why not choose to claim, or to pursue the claim, in the USA?'" Mr. Barsky found that fully half of his sample group of refugees from the former Soviet Union who applied for asylum in Canada cited fear as the reason for not applying in the U.S., principally the fear of crime and/or racial tensions. This is not to suggest that these refugees fear persecution in the U.S., but rather that, having suffered persecution or a wellfounded fear of persecution in .their homeland, they now seek a place where they will feel safe and secure. For many refugees who travel to Canada via the U.S., that place is n~t the U.S., with its relatively high violent crime rate and racial divisions. To illustrate, one refugee described the impact of years of negative Soviet propaganda about life in the U.S. "Poverty, crime was described in every city," she said. "Danger, poverty, Blacks. I believed all of it: we all did." Refugees' impressions of the U.S. were generally limited to its largest cities, which they perceived as "riddled with murders, interracial tension. filth and noise." according to Mr. Barsky. That is significant since most refugees tend to settle in large urban areas. For persons fleeing their homelands out of fear, and who have been persecuted and traumatized, the goal of reaching a safe destination is paramount. Whether or not we accept their fears of the U.S. as legitimate, it appears nevertheless that many see Canada. not the U.S., as a true land of refuge and safety. One woman said, "I did not want to ask for status in the U.S.; it is big, intimidating and dangerous. Canada was to me a nice, beautiful, calm country. Here they don't shoot people." Needless to say, refugees also cited other reasons for choosing Canada (some of which are accounted for in the grounds of exception to the MOA's country-offirst arrival rule), such as the presence in Canada of family and friends. Nevertheless, Mr. Barsky's study suggests an important element of the refugee reality that is unacknowledged in the MOA: the element of fear. It seems arrogant at best, and inhumane at worst. for governments to recognize the fears that refugees Barsky, "The American Dream a la Canada:' Journal of Refugee Studies. No.2 (1995). 8

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The U.S.-Canada MOA would be a significant departure from established principles and practices. It goes even further than the U.S. government's secondary stated purpose for concluding this agreement: to "encourage applicants to apply for asylum in the country that offers the first opportunity for effective protection." It would not merely encourage applicants to apply in the country of first arrival; it would (with some exceptions) require them to do so. Unlike ExCom Conclusion 15's declaration that an asylum seeker's wishes should be taken into account "as far as possible," the MOA would minimize the asylum seeker's wishes. It would create a government-heavy, formalistic decisionrnaking apparatus that would strip asylum seekers of their exercise of choice and personal judgment about their own security and well-being. Preserving the individual's freedom to choose is not an abstract principle for refugees. Refugees are persons who, by definition, have had their rights trampled upon by their governments. and who. in many cases, bear the scars of government intrusion. The underlying reasons for some refugees' choice of Canada over the U.S.-and the importance of respecting that choice-arc presented in a recent study

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harbor about their home countries, and the trauma that many have suffered, but then force them to apply for asylum in a country where they still feel unsafe. THE DANGER OF CHAIN DEPORTATIONS The forced removal mechanism might not stop at the U.S. and Canada. The logic behind the MOA is likely to entice the U.S. and Canada toward seeking additional countries of first arrival to which they can push asylum seekers back, a situation contemplated in Ms. Coven's remarks at the Carnegie meeting, quoted above, as well as in Article 5 of the Agreement.' This represents the slippery slope that experience with similar responsibility-sharing agreements in Europe has shown results in "chain deportations," in which each country sends the asylum seeker back to the country of prior arrival, until the claimant is sent back to the country of first asylum? Such countries, by definition, are on the front lines of refugee flows, often fearful of being destabilized themselves by the arrival or presence of refugees, usually lacking the resources to adjudicate claims, and having undeveloped legal traditions of due process. The European Council on Refugees and Exiles (ECRE) has documented numerous .cases of chain deportations taking place under the Dublin and Schengen frameworks. As bad as these cases are, for the most part they represent the lucky few who were identified along the way by NGOs who were able to intervene on their behalf before refoulement, or forced return to the country in which the persecution took place, occurred. One such case involved an Iraqi national who fled Iraq on February 27, 1994 and arrived at Copenhagen airport on March 4.3 Denmark rejected his asylum application on the grounds that he had transited through Italy, a safe country of first arrival. On March 9, Danish police escorted him to Rome. Italian Article 5 specifically recognizes that the U.S. and Canada may return applicants to a third country, as long as certain conditions apply, including the existence of an agreement with the third country. See "'Safe Third Countries': Myth and Realities," European Council on Refugees and Exiles (ECRE) (Feb. 1995) (hereinafter Myth and Realities); Kumin, "Asylum in Europe: Sharing or Shifting the Burden?" World Refugee Survey 1995 (U.S. Committee for Refugees). This case is taken from Myth and Realities, Appendix B, case history 1.

authorities detained him for two days, did not allow him to communicate in his native language, and prevented him from applying for asylum. On March II, Italian police put him on a plane for Tunis. Upon arrival there, he was imprisoned and interrogated. He was allegedly beaten and burned with cigarettes during the interrogation sessions and the Tunisian authorities threatened to hand him over to the Iraqi embassy. A family friend in Denmark alerted UNHCR about the case and traveled to Tunisia to find him. With the assistance of the UNHCR representative in Tunisia, the asylum seeker was released from prison on March 18. UNHCR recognized his refugee claim. From Tunisia, he applied to Denmark for refugee resettlement and was admitted there on July 19. During the time he was in Tunisia, he was required to report to the police every other day, and the police during this time continuously threatened to turn him over to the Iraqi authorities. Even when countries of first asylum have acceded to the 1951 Convention and 1967 Protocol relating to the Status of Refugees, and even when they have statutes that appear to implement those instruments, the reality of their practices often diverges significantly from their formal commitments+ The result can be refoulement. But by the time that occurs, it is often out of sight and out of mind in the countries higher up on the chain. In one such case documented by ECRE, a Somali refugee traveling with five dependent children was pushed out of four different European countries, each less safe than the previous one, until UNHCR and ECRE finally lost track of them.S The family arrived at Brussels airport on May 29, 1994 and applied for asylum. They were immediately detained and subjected to an expedited procedure in which the application was turned down as fraudulent. The Belgian authorities returned them to Prague on July 8. The Czech Republic sent them in turn to the Bratislava airport in Slovakia because they had in their passport a genuine, but expired, visa allowing them transit of Slovakia. The Slovak authorities detained the family at the airport, fed them one meal a day, gave them no place to sleep, and denied them 4 See Gzesh, "So Close to the United States, So Far from God: Refugees and Asylees Under Mexican Law," World Refugee Survey 1995, (U.S. Committee for Refugees). Myth and Realities, Appendix B, case history 3.

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access to a telephone or to an interpreter. UNHCR discovered and interviewed them, and found them to have a well-founded fear of persecution. Despite UNHCR's intervention, the Slovak authorities refused to register the applicants' claims for asylum, arguing that the Somalis were tourists who had not applied for asylum. Slovakia insisted that they be deported to Ukraine, the country of first arrival. UNHCR countered that returning them to Ukraine would be tantamount to refoulement. On the night on July 25, the Slovak authorities put the family on a train to Kiev. At that point, UNHCR lost track of them. ADDITIONAL ISSUES The purpose of entering into the MOA seems, transparently, to enable the U.S. in future years to wash its hands of most asylum claims without a hearing. The temptation to pass the buck-or, in this case, to pass the burden without the bucks-is too great to resist. If there is any doubt about intent. one need only look at the U.S. government's demonstrated willingness in July 1993 to divert Chinese boat people seeking asylum in the U.S. to Mexico, a country that is not a signatory to the Convention and Protocol, and which summarily repatriated the boat people to China. I This, of course, is the antithesis of international burden-sharing; it shifts the burden from those most capable of providing fair adjudicatory procedures to those least able or willing. The flaws of the MOA are not limited to the presumptions underlying them, but extend to the MOA's implementation, which will mean the introduction of new inefficiencies, costs, and bureaucracies. Disagreements will inevitably arise between the U.S. and Canadian governments over which country is responsible for examining a claim, and those disagreements will have to be arbitrated. Refugee claimants will be left in limbo-perhaps in new detention centers strung along the U.S.-Canadian border-while an entire new bureaucracy spends time and resources determining a host of new questions raised by the MOA, such as the length of time an asylum seeker transited through the country of first arrival; the exact relationship to relatives in the second country (and the status of those relatives); whether the

asylum seeker is eligible to pursue a refugee status claim in the country to which he or she is being returned; whether the return of an asylum seeker to a third country is acceptable to each of the parties to the MOA; and what constitutes the best interests of an unaccompanied minor. The arbitrariness of the MOA and its lack of connection to the real world of refugee movement is on display in its in-transit exception to the firstcountry-of-arrival principle. The MOA makes an exception for persons arriving in the first country by air who spend less than 48 hours there, and makes an exception for those able to transit the first country in 10 days after arriving by land or sea. Setting fixed time limits neglects the many obstacles to travel that refugees encounter, particularly when they are poor, female, and/or traveling with children. Journeys are slowed by a variety of circumstances, including immigration detention, health problems, and lack of funds. The MOA, however, brooks no extenuating circumstances for stopping the clock. Freedom House, a local NGO in Detroit, Michigan, has gathered from its files actual cases of persons it has served who found refuge in Canada, but who would have been denied entry under the terms of the MOA.2 One such case is that of "Marta," a 43year-old Guatemalan woman whose politically active husband disappeared in 1993 after a year of harassment. She does not know whether he is alive or dead. Marta left Guatemala and headed for Canada where she had a friend who could provide her with emotional support. While crossing Mexico, Marta was arrested and assaulted several times by the authorities. Once she arrived at the U.S.-Mexico border, Marta paid a coyote (smuggler) to take her across. Once they crossed, he robbed her of all her possessions, raped her, and abandoned her. Traumatized, undocumented, destitute, and unable to speak English, Marta took four months to reach Freedom House in Detroit. Once there, she petitioned for and was granted refugee status in Canada, and is now living in Canada and recovering from her trauma. Under the MOA, Canada would have shifted responsibility to the U.S. Here, she would have had to face an asylum system that, unlike Canada's, lacks 2 Preliminary Draft Agreement between Canada and the United States for Examination of Refugee Status Claims: Actual Pre-MOA and Potential Post-MOA Case Scenarios, Freedom House (Feb. I~, 1996).

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government-funded legal representation for asylum seekers, and which had a 5.7 percent asylum approval rate for Guatemalans last year, as opposed to Canada's 57 percent approval rate for Guatemalans for the same time period. And who knows what will happen if pending legislation in the U.S. Congress becomes law? The same blindness the MOA shows toward the refugee reality is evident in pending bills that would arbitrarily set a 30-day limit on filing asylum claims. Such limits ignore the need asylum seekers have upon arrival to locate family and friends, find shelter, and only then to seek the few opportunities available for pro bono legal counsel and to take the time to prepare a case.' As with the MOA, pending legislation would result in the INS bureaucracy pursuing costly and protracted detours such as determining dates of entry and deciding exceptions to the time limit, rather than directly and promptly examining the merits of claims. If Congress has its way and if this version of the MOA is signed, a Marta who takes four months to transit the U.S. en route to Canada will not only be refused by Canada for having failed to meet the 10-day time limit for transit in the MOA, but also will be barred from applying for asylum in the U.S. by having failed to file a claim within 30 days of entering. While the two governments expend their time interpreting the fine print of the agreement, people like Marta will be forced to remain in limbo, uncertain and afraid. The subordination of the individual's needs and wishes to the arbitrary dictates of government is illustrated in the MOA's formulaic approach to family reunification. It is left to the two governments to decide whether the lawful presence of relatives in the territory of the second country should relieve the country of first arrival of responsibility for examining the asylum seeker's claim. The MOA outlines a formula that distinguishes between "close" and "immediate" family members that appears to suggest that the presence of a "close" relative, such as siblings and non-dependent child-parent relations, in the country of first arrival could trump the presence of an Immigration Reform Act (S. 1394 and S. 269) and Immigration in the National Interest Act (H.R.2202). See Kerwin, "Don't Give Me Your Tired, Your Poor or Your Huddled Masses: The Impact of Pending Legislation," 73 Interpreter Releases 157 (Feb. 5, 1996); 181 (Feb. 12, 1996).

"immediate" family member, such as a spouse or dependent child, in the second country. This approach, for example, could prevent a mother from reuniting with her dependent child in the U.S. due to the presence in Canada of a sister. Freedom House also gathered case files of persons who likely would have been denied family reunification if the MOA had been in effect when they were seeking entry to Canada. One was the case of "Leuretta," a seven-year-old girl from Burundi whose mother had died in childbirth and whose father was a political prisoner. Knowing that her father would not be able to care for her, her uncle "John" raised her as if she were his own daughter. When she reached age six, John had to flee Burundi. He entered Canada and was recognized as a refugee. John sent for Leuretta, but she was unable to obtain a visa for Canada as he had not formally adopted her. She came to the U.S. with the intent of making a border claim in order to unite with him. While waiting in the U.S., Leuretta stayed with an aunt whom she had never before met. Under the MOA, the authorities most likely would have determined that the relatives on either side of the border were equally close-an aunt and an uncle-and stuck with the country-of-first-arrival principle. If they had done so, Leuretta would have been prevented from reuniting with the only father she had ever known and been forced to live with a virtual stranger. Another case is that of "Ahmed," a 57-year-old man from Somalia who arrived in the U.S. with his sister. Both intended to reunite with Ahmed's sister's daughter in Canada. In 1991, a bomb destroyed his house and killed his wife and three children. He survived the blast, but saw his entire family die. He fell into deep depression. He fled Somalia with his only close surviving relative, his sister, whose daughter had landed immigrant (permanent resident) status in Canada. Ahmed and his sister arrived together in the U.S. If the MOA had been in effect, his sister would have been able to proceed to Canada to join her daughter, but Ahmed would not have been permitted to cross, since the MOA does not define a niece as a close relative. Ahmed would have been left alone with no family to provide emotional and psychological support. As it was, under the present system with no MOA, Ahmed and his sister were able to travel together to Canada, file a refugee claim, and live with his niece. Of far more importance to a refugee than the closeness of the blood relationship is knowing which relative is better able or more willing to help. Yet,

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73 lNTERPREfER RELEASES

225

February 26, 1996

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the MOA reserves for government bureaucrats the Solomonic decisions about which family relation prevails; the asylum seeker has no voice, no choice . For a country that claims to give priority in its immigration policies to the reunification of families, such an approach is questionable at best. The MOA thus creates a wasteful, unnecessary, and intrusive government apparatus. If the motivation for the agreement is the fear of asylum shopping, there are easier ways to address that problem (if it is a real problem at all). It would make more sense simply to establish an information-sharing regime so Canadian and U.S. immigration services could check whether claimants had already been denied asylum in the other country. A claimant who had been denied by one country and then managed to enter the other country to file another claim there might be required to overcome a presumption that his application is manifestly unfounded. 1 This would reduce the need to determine which country is responsible for examining the claim. It would also avoid the unpleasant business of forcing a person who wants to apply for asylum in one country back to a country he or she left because he or she did not want to apply for asylum there.

North America to restrict avenues of relief for refugees and asylum-seekers. At a time when the worldwide refugee' population is at record levels, those efforts represent a disturbing and ominous trend. 0

1. Executive Contractors

Order Mandates Debarment for Hiring Unauthorized Workers

Focusing on immigration enforcement as he gears up for this year's Presidential campaign, President Clinton signed an executive order (EO 12989) on February 13, 1996 that bars federal contractors who knowingly hire unauthorized alien workers from obtaining additional government contracts for a period of one year. The President first announced the new order in his State of the Union address on January 23.2 Stating that "American jobs belong to American workers," the President said that the executive order "reinforces the principle that government businessand tax dollars-should not be directed to employers who knowingly hire illegal workers." Most agencies of the federal government contract with private companies for goods and services. Responsibility for administering and enforcing the new order rests with the Attorney General (AG) . Specifically. section 3 of the order provides that the AG: • may investigate to determine whether a contractor or an organizational unit thereof is not in compliance with the employment provisions of the INA; • shall receive and may investigate complaints of noncompliance by employees of such contractors; and • shall hold hearings compliance. as necessary to determine

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CONCLUSION The MOA is therefore unnecessary and unwarranted. It would contravene international standards of refugee protection that have been accepted by the U.S. and Canadian governments, and would represent a sharp departure from longstanding principles enshrined in the laws and practices governing asylum in the U.S., including the preservation of refugees' freedom of choice. Perhaps more important, the MOA would represent yet another example of efforts in Europe and The United Kingdom utilizes such a system generally under paragraph 347 of HC 395 of the Immigration Rules, whereby an application is considered to be manifestly unfounded if the applicant has previously had his or her asylum application considered and rejected by a country that is a party to the United Nations Refugee Convention. Although the British law is overly broad, and is lacking in assurances that a country that is a party to the Convention has, in fact, fair procedures, it nevertheless suggests that the U.S. and Canada could devise an agreement that would allow adjudicators in one country to consider as an aggravating factor the denial of a claim in the second country .

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If the AG determines that a contractor or one of its organizational units is not in compliance with the INA's employment provisions, she will transmit that determination to the appropriate contracting federal agency. That agency will then consider the contractor or its organizational unit for debarment or other appropriate action. in accordance with procedures set forth in the Federal Acquisition Regulation. The

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See 73 Interpreter

Releases

133 (Jan. 29,1996).

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