Canada/Asylum

Claiming asylum as a refugee is considered risky at the moment, and anyone seriously considering it should consider all other options first, including other potentially viable countries. Asylum has not yet been granted to any US citizens but for those with no other options, it may be worth the risk of being denied. It is highly recommended to seek help from an immigration lawyer specializing in refugee claims before proceeding.

Most importantly, DO NOT CLAIM ASYLUM AT THE BORDER!.

Weigh whether it is worth the risk

Important: Seek legal council from a CANADIAN REFUGEE LAWYER before making a decision whether your individual situation is appropriate for the asylum pathway into Canada

Pros:

• If you are granted asylum, you would be granted permanent residence
• While your case is in progress, you could legally work in Canada and access free health care
• Your case could take years to process, so even if you lose your claim, it is time spent in relative safety

Cons:

• A potentially long and expensive legal battle
• You cannot return to the US until you are either rejected or granted asylum
• If you lose your case, you will be removed from Canada. You will not be able to apply again
• Some governments have been known to clear asylum cases en masse, and you could be rejected in a short time frame if Canada decides its asylum system isn't working

Determine if you are eligible

You cannot claim asylum if:

• You entered Canada for any reason after June 24, 2020 and:
  • it has been more than 1 year since you first entered from a regular port of entry.
  • it has been more than 14 days since you first entered from an irregular port of entry (ie. without going through an airport or border crossing station)
    • Example: if you drove from Detroit to Windsor just for one night in 2021, you could not now claim asylum.
• have already made a refugee claim in another country or are recognized as refugee by another country that you can return to
• already have protected person status in Canada
• are subject to a removal order
• are inadmissible to Canada on security grounds or because of criminal activity or human rights violations
• made a previous refugee claim in Canada that was determined to be ineligible
• made a previous refugee claim in Canada that was rejected, abandoned, or withdrawn
• entered Canada from the U.S. along the land border (this is disputed, however, see below)

Your basis for claiming asylum would be a combination of your belonging to a persecuted social group and having any:

• danger of torture, or
• risk to your life, or
• risk of cruel and unusual treatment or punishment

Steps for making a claim

It is extremely important to follow the proper steps to ensure your claim is valid.

1. Get into Canada, preferably by air
2. Do not tell any border agents that you intend to claim asylum. As a US citizen you can enter visa-free for up to 180 days
3. Once you are in Canada, get legal counsel
4. Ask your legal counsel to help you submit a claim to IRCC
5. Attend an eligibility interview with CBSA (1-2 weeks after application)
6. Collect evidence while awaiting your hearing (currently 3 or more years' wait)
7. In the meantime you are given a work permit and UCI number for accessing healthcare

How will I support myself/family?

You'll be assigned a UCI number to qualify for public health care, financial assistance, etc.

If you are granted asylum, you can also apply for Legal Aid, on financial merit. (Our source has stated that Legal Aid has significantly reduced fees by half ($1,134.00 per family/individual claimant) for LGBTQ+ individuals.)

Should you cross by land or by air?

Non-U.S. citizens (including Green Card holders/permanent residents) are subject to the Safe Third Country Agreement (STCA). They must settle in the country they landed, and can not cross the American/Canadian land border to settle in the other instead. The agreement's policy on refugees does not apply to US citizens directly, but provides legal precedent for the United States having legal status as a "safe" country, thereby burdening applicants efforts to justify why they cannot safely be returned to the US.

Due to the STCA, technically anyone who crosses from the US into Canada would be denied asylum. However, TWE's legal contacts suggest that the SCTA does not apply to US or Canadian citizens.

Therefore, while one can argue that the SCTA does not apply to you as a US citizen, it may be less risky to travel by air.

Legal precedent

Human rights advocates and organizations such as Rainbow Railroad and the UNHCR have appealed the Canadian federal government to make an emergency exemption for trans US citizen to protect them from persecution. This would remove barriers to asylum status that prevent claimants from applying successfully at the border. At this time, no decision has been made on the appeal. In addition, there are a few high profile cases of transgender US citizens testing the waters and seeking asylum in Canada.

For more details on rules around asylum applications, see Options_to_Applying_for_Refugee_Status:_Applying_from_Inside,_Outside,_and_at_the_Border_of_Canada