Canada Research-a-thon
On Saturday, February 4th 2017
22 law schools across Canada will be working together to assist the Canadian Council for Refugees

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WHO WE ARE

ORGANIZATION

This nationwide initiative unites students from 22 legal faculties to engage in legal research and the drafting of legal opinions in response to questions posed by the Canadian Council for Refugees (CCR). The research will seek to identify potential legal challenges to the Safe Third Country Agreement and support various CCR mandates.


MISSION

Raise funds for the Canadian Council for Refugees.

Conduct research for the Canadian Council for Refugees so this information can be used in their mandates to aid refugees.

Demonstrate Canada's discontent with this Executive Order and its resulting effects.

Express Canada's desire to withdraw from the Safe Third Country Agreement if the United States refuses to modify its Executive Order.

WHAT IS THE ISSUE?

On January 29th, 2017, President Donald Trump signed an executive order for extreme vetting. Consequently, Syrian refugees have been indefinitely barred from entering the United States, a 3-month ban has been imposed on anyone travelling from Syria, Iran, Iraq, Yemen, Libya, Sudan and Somalia, and a 90 day ban has been implemented on non-US citizens who hold dual citizenship from these countries.


This inevitably resulted in confusion, misinformation and uncertainty amongst those who were greeted by this new executive order upon their arrival to the United States. A federal judge in put a stay on new arrival deportations, leaving many people in legal limbo and faced with the prospect of going back to a country where they may be in danger. This is problematic because there are people already in the United States who planned on making refugee claims and now no longer can.


However, due to the Safe Third Country Agreement (STCA) signed between Canada and the US in 2004, those same people denied entry to the US cannot come to Canada to make their claim.


WHAT IS AN EXECUTIVE ORDER

An executive order is an official declaration from the President providing instructions on how the government agencies are to use their resources to work within the existing parameters set by Congress and the U.S. Constitution. It does not constitute new law but the American Constitution authorizes such action to be taken by the President.

Most of these executive orders bear witness to the President's desire to act without considering the opinion of Congress. The challenge posed by such orders is that Congress cannot challenge the order and has no concrete remedy to abolish it.

Since the Constitution is the legislative basis under which all laws are passed, it has absolute power. Historically, only two executive orders have been overthrown by the U.S. courts, rendering them invalid.


VALIDITY OF THE EXECUTIVE ORDER ON IMMIGRATION

The right of the President to sign an executive order is protected under the U.S. Constitution. However, any executive order passed must still respect the basic principles and values set out in the U.S. Constitution.

Nevertheless, the executive order’s validity can be challenged in two ways:
1. First, it is alleged that this order violates the constitutional right to freedom of religion.
2. Second, it is argued that it violates the right to fair treatment.

Historically, the President retains the powers to control U.S. borders. While it seems unlikely that the executive order could be overthrown, judges in four American states have rendered conflicting judgments that question the effect of the executive order.


CURRENT FEDERAL COURT JUDGMENT

A federal state judge in Washington has temporarily blocked the executive order nationwide. The Department of Homeland Security has honoured this judgment and has returned to its usual immigration processes, which were in place prior to this executive order. Nonetheless, the Trump administration has confirmed it intends to contest this judgment at the earliest possible.


WHAT EXACTLY IS THE SAFE THIRD COUNTRY AGREEMENT (STCA)?
WHY DO WE HAVE THIS?

It is an agreement between Canada and the US that recognizes each other as “safe” for refugee claimants. This means that those who try to enter Canada through the US to make a claim at the border, are returned to the US regardless of whether they will or already have had access to asylum in the US. In essence, the Agreement prohibits asylum seekers from making refugee claims at the border.


ARE THERE EXCEPTIONS?

Yes, the Agreement allows for some limited exceptions. The most important one is:
- Those who have a family member in Canada with status. These individuals are permitted to enter and make a claim.


Those claimants who qualify for an exemption to the STCA, are permitted to proceed with a claim before the Refugee Protection Division. However, the legislation provides that they are barred from appealing a negative decision to the Refugee Appeal Division. The appeal bar bears no connection to the merits of the refugee claim, as it is tied solely to the fact that the claimant made their claim at a land border with the US.

WHO DOES THIS AFFECT

The executive order on immigration prohibits temporarily the entry into the United States of foreign nationals, visa holders, immigrants, refugees, and asylum seekers who are nationals of Syria, Iran, Iraq, Yemen, Libya, Sudan, and Somalia.


With the exception of refugees from any country who are suspended indefinitely, all other foreign nationals targeted by this order are banned for a 90-day period, during which the United States will review its immigration and visa issuance policies to ensure that those admitted within the U.S. in the future do not pose a threat to the security and welfare of the United States.


The Whitehouse has confirmed that U.S. green card holders who are foreign nationals from these seven countries are not affected by the order.


It has been confirmed by the Canadian Prime Minister Justin Trudeau that Canadian dual citizens from one of the seven affected countries are not affected by the ban.


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