Cold Winds from the North: An Analysis of Recent Shifts in North American Refugee Policy


Over the past decade, the people of Central and South America and the Caribbean have endured increasing political unrest and social upheaval. Several countries in these regions, long subjected to military or autocratic rule, have become embroiled in civil war or revolution. As a result, many citizens of these nations fear for their own safety because of their political views, their nationality, or their membership in particular organizations or groups. In order to survive, many of these individuals must leave their homes and migrate north to seek protection pursuant to United States or Canadian refugee laws.

In 1976, Canada revised the Immigration Act to create a comprehensive system for addressing the claims of individuals facing persecution in their countries of origin. Four years later, the United States implemented a statutory scheme specifically designed to guarantee the protection of refugees. By virtue of having developed these measures to assist refugees, both countries formally put into effect the provisions of the United Nations Convention Relating to the Status of Refugees4 and the accompanying Protocol. Moreover, both Canada and the United States adopted the United Nations Protocol’s definition of “refugee” to determine who qualifies for protection under the statutory framework of each respective country.

For the thousands of individuals fleeing domestic turmoil or persecution, however, recent and proposed changes in Canadian and United States refugee policies add to the already mounting concerns about the availability of refuge in North America. One manifestation of the changes in North American commitment to refugee protection was the Canadian government’s abrupt announcement on February 20, 1987, that refugees from countries experiencing civil strife and turmoil would have to apply for refugee status in Canada under the regular, rather than the expedited, refugee determination procedures. Previously, refugees from such countries were accorded expeditious processing for permanent residency under the Canadian Special Programs procedures. In addition, refugees attempting to enter Canada from the United States would have to remain in the United States until an adjudicative proceeding could be scheduled for them.

Immigration experts criticized the elimination of the expedited processing aspect of the Canadian refugee protection programs, although the basic protections of Canada’s refugee law did remain intact. Nonetheless, the February 1987 developments presaged more significant restrictions in North American refugee policies.

Uncertainty about the future protection of refugees increased when both Canada and the United States announced proposed revisions to their respective refugee determination procedures. The Canadian government introduced legislation in May and August 1987 that would completely restructure the administration of its programs for refugees applying at the border as well as from within Canada. Perhaps more importantly, the legislation would restrict overall access to refugee protection. After heated debate, the legislation finally was enacted in the summer of 1988.

Revision of the Canadian scheme had long been expected. During the previous seven years, the Canadian government had commissioned a series of studies to recommend changes in the refugee determination procedures. The impetus for change also derived from an important decision of the Canadian Supreme Court invalidating key elements of the Canadian asylum procedures. More importantly, however, the Canadian government took the position that existing procedures were insufficient to accommodate the increasing numbers of asylum applications. Despite government assurances that the new procedures will protect refugees, the scope of the revisions and the severe limitations that they impose regarding which persons may apply for protection have prompted sharp criticism.

In the United States, the Immigration and Naturalization Service (INS) proposed comprehensive changes to the regulations governing the United States asylum adjudication process on August 24, 1987. These proposed regulations – later withdrawn – eliminated the role of immigration judges and the formal adversarial hearing currently used to adjudicate refugee applications. Instead, the proposal provided that INS asylum officers determine the legitimacy of asylum claims in an informal, non-adversarial interview setting. The INS, confronted with strong objections, withdrew this particular aspect of its proposal. In a subsequent proposal, several months later, the INS shifted focus by limiting the scope of the hearing conducted by the immigration judge. The suggested changes, and those in subsequently proposed regulations, illustrate the blend of competing interests influencing the direction and implementation of United States refugee policy.

The proposed revisions to the United States asylum policies and the newly-enacted Canadian refugee law reflect the current apprehension in the United States and Canada with respect to expansive refugee and asylum programs. Indeed, these recent events heighten concerns regarding North American commitment to aiding persons fleeing persecution, particularly in this hemisphere.

This Article analyzes the current situation of refugees seeking asylum in North America. It begins in Part I with a brief historical overview of North American refugee policy. Part II summarizes the refugee policies and practices employed by the United States and Canada. Part II examines the enacted and proposed revisions to United States and Canadian refugee processing systems and explains the reasons for the current policy shifts. Part IV examines the implications of the enacted and proposed revisions. This section suggests an analytical paradigm for evaluating North American policy and explores the consequences of the recent policy shifts on those seeking refuge in North America.

Canada and the United States are at a turning point in their refugee and asylum policies. A number of the changes in the structure and administration of these countries’ respective asylum programs have significant detrimental consequences for refugees. In the past, international commitments, political and public pressure, as well as judicial intervention, have prevented both countries from any wholesale rollback of the protections offered to refugees. It seems clear, however, that fears about the detrimental impact of the admission of refugees are beginning to overshadow humanitarian concerns and have led to dramatic restrictions on the opportunity for those facing persecution to find “safe haven” in North America.

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