We asked a Canadian immigration lawyer.
Trump looking v pleased with himself as per usual. Photo via CP/Lev Radin/Everett Collection
Last night, the Canadian immigration website crashed due to an influx of traffic as the reality of Donald Trump being the next American president revealed itself. As an American living in Canada, throughout this election cycle a number of friends from the US have joked with me about fleeing the Trumpocalypse. When I woke up this morning and realized the world we unfortunately happen to be living in, I fielded more questions and concerns in my DMs than ever before about Canadian immigration. Unfortunately, those messages have now turned completely serious.
Wondering if any of my fellow Americans could come to Canada as refugees or by other means, I reached out to Canadian immigration lawyer Raj Sharma to find out.
VICE: Could we see certain groups of people in the US claim refugee status in Canada due to the Trump presidency? Last year we saw a case where a black American man said he was fleeing police brutality in the United States, which was ultimately denied.
Raj Sharma: I suppose so. We saw some refugee claims from Iraq War military deserters. There was the Jeremy Hinzman case a few years ago, and Randy Quaid. I used to be a refugee protection officer, and I know what's an acceptable refugee claim by an American. The problem is this for a refugee claim: You need a personalized risk. It's got to be persecution, which is a significant interference with a core human right. Disagreement with Trump or being the victim of police brutality or profiling, that really comes more under the lines of discrimination and harassment, which is not covered by refugee definitions.
There's two other hurdles. One would be internal flight alternative—if there's a problem in one part of the country, could you be safe in another part? That problem has to be everywhere in that country. If you can [move to another area], you don't get international protection. Then you have state protection: Can you go the police? There's various levels of protection in democratic countries like the US and Canada.
Are there other ways that we could see Americans applying to immigrate to Canada in significant numbers other than through refugee claims?
I don't expect a deluge of American refugee claims, but there are other options. There's something called a humanitarian and compassionate application. That's a bit broader and talks about hardship and establishment in Canada. Other than that, it's an economic class application.
My advice to Justin Trudeau and John McCallum is to open up some sort of class for Americans. We accepted thousands of draft dodgers from the Vietnam War. I think we should make a special class for Americans with some education, some money, and no serious criminal record. We could probably benefit from this in an odd, macabre sort of way.
What about the undocumented immigrants in the US who will now likely be sought out to be deported?
Absolutely, now you've got something. That's what happened after September 11th. After 9/11, there was this sort of crackdown, and we saw a lot of Pakistanis that had basically never lived in Pakistan and didn't really have status in the US—they arrived as two, three, four-year-olds. You will see that. It's a bit speculative... but we have seen this before. Those claims can get difficult to win because they've been in the US for so long it might be tough for them to prove why they didn't make a refugee claim in the United States before, for example.
We have something called a Safe Third Country Agreement. That means if someone comes up to the border and they've entered the US, they actually have to make a claim in the US and not Canada. That Safe Third Country Agreement kicked in a little bit after 9/11. Now that is even restricted. Now, if they cross the border illegally, they can actually make a refugee claim inside Canada. If they don't, if they follow the law, they won't be able to make a refugee claim at the border. The law the way it is written encourages people to do something that is illegal.
What about specifically Muslim people in the US?
Yeah, you're right. There's also journalists. If I was a journalist... I saw that shirt a Trump supporter was wearing that said something like "tree, rope, journalist: some assembly required." That's a little bit freaky. Free press is a necessary precondition to democracy... We kind of joke a little bit about it, but some of this stuff isn't that funny anymore. But yes, Muslims are an identifiable group, and they come under the conventional refugee definition, which is membership of a particular social group or religiously based persecution. You would have to have more than discrimination and harassment, and you'd have to show that they can't go somewhere else [in the country] and be safe, and you'd also have to show that maybe county or state police would not be assisting them. The reality is that it would be very difficult to displace the presumption of state protection.
I think we're all hoping he did all that bombastic rhetoric to get free media play, air time... Muslim Americans, Mexican Americans, Hispanic Americans—I feel for them. I don't know if the route is a refugee claim in Canada, but we have seen this before and we do participate. We've been joking that this office [where I work], a dedicated immigration office in Canada, is going to double in size.
How could Canada be affected by an influx in immigration from the US?
I think Canada is going to benefit in a number of different areas. There may be refugee claims, and there's some barriers there. There may be other attempts to access Canada's non-economic classes—that's a bit of a long shot. When you start talking about temporary foreign worker, and IT, software, and skilled immigrants (like those from India)... Anyone who was thinking about the US might just say, "Hey, you know what? I'll pay a little bit more in taxes maybe, but I'll go to Canada. Then my kids don't have to deal with racism or discrimination."
What about women in the US if abortion law changes due to the Trump presidency? Could a woman who needs an abortion be given some sort of refugee status in Canada?
A claim of persecution based on the curtailment of reproductive rights. Wow... I would certainly make the argument that the right over one's body and to control is a core, fundamental human right. Now we are getting into the upper-echelon of refugee litigation. This has not been litigated before, but certainly if it is something we were confronted with it, we could do it. That being said, an American would come up to Canada, and they may be able to access a clinic [without a claim]. By the time it gets to litigation, you'd already have the kid you didn't want or would have somehow obtained the service. Then it's moot. You'd almost have to test it by way of a young lady coming and saying, "Look, if [an unplanned pregnancy] happens in the future, I don't have access to this service." That would be by way of the humanitarian application then. A denial of a medical procedure may not constitute a risk to life, which is what the refugee claim process is for. It's shitty, but it's not a refugee claim.
What about the state of the Canadian border? I am wondering now as an American living in Canada if it will be harder for me to travel between the two countries.
I don't know, maybe Trump will build a wall and call us snow Mexicans. Maybe we will build one. It's quite remarkable with Brexit, this anti-globalist and nativist sentiment... Trump's base is the non-college-educated white man and those that have been left behind for internationalism. What happens is people think there might be less business for immigration lawyers, but it's actually the converse because the more rules you have, then you need lawyers even more. Before it was relatively easy—there was NAFTA... If you fit under Chapter 16 and were a professional, you could show up to the border with a letter of employment and get a visa. I think there's going to be very significant impact to Canadian, Mexican, and American relations. He's going to negotiate NAFTA, and that is going to be very significant... It will impact Canada in multifaceted ways.
Obviously many Americans have been considering relocating to Canada as we have seen the Canadian immigration site overloaded, but do you think that is actually going to translate into more immigration cases?
Yes. The US is like Jupiter. The only reason there is life on Earth is because of Jupiter—it has this massive gravitational pull. It pulls in all these asteroids and meteors that would be brought into our solar system and bombard Earth. Instead, they get wrapped up into Jupiter's orbit. Even if there were immigrants or illegal immigrants, they didn't want to come to Canada. At our peak, we might have 30,000 illegal immigrants in Canada. The US has millions.... A change in policy, and that gravitational pull gets weaker or starts propelling people away. The US is great because of immigrants... I think people will simply say, "If I can't go to the US, I'll go to Canada." Canada should not be a consolation prize, but we are. We should accept that. We should revel in it.
I'm very proud to be Canadian. I think there's actually opportunity here, and if Canada opened up its immigration—particularly to people like Americans—we could be a superpower in ten years.
This interview has been edited for length and clarity.
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