“Safe Third Country Threshold Screening” Lesson Plan Released By The US-CIS In Response To A Freedom Of Information Lawsuit


US-CIS recently released an asylum officer lesson plan entitled “Safe Third Country Threshold Screening.” 17 pages, dated May 9, 2013 are now available on the “Asylum Officer Materials” page of the Louise Trauma Center: www.louisetrauma.weebly.com and as AILA Doc. No. 1712 2217.

The materials were released in settlement of a Freedom of Information Act lawsuit filed by Catholic Charities of Washington DC.

When is someone seeking entry into the US from Canada at a land border eligible for asylum? In 2002, the US and Canada signed an agreement dealing with asylum seekers traveling from or to each other. One important principle underlying this agreement is that “to the extent practicable, the Agreement should not act to separate families.” Page 5 of Lesson Plan. In general, “the Agreement allows asylum seekers to join certain relatives already in the ‘receiving country.’” Page 5.

Threshold screening

An asylum officer shall conduct a threshold screening interview to determine if an exception applies, and the applicant must establish this by a preponderance of the evidence. 8 C.F.R. section 208.30(e)(6)(i). An applicant arriving at a U.S. port-of-entry on the shared U.S.-Canada border will be ineligible to pursue her claim unless she qualifies for an exception, such as having certain relatives [“anchor relatives”] who have been granted asylum or have other lawful status, or have an asylum application pending. Page 7.

Credible testimony alone may be sufficient to establish a qualifying relationship. Page 9.

A grandparent could be an anchor relative. Proof of this could be a sworn statement from the grandparent or the applicant’s parent. Pages 10-11. Aunts, uncles, nephews and nieces could be anchor relatives. Page 11.

Lawful immigration status includes persons granted Temporary Protected Status, and persons “with valid student and employment-related non-immigrant visas.” Page 12. A relative whose application has been administratively closed does not have a “pending” application. Page 13. “No assessment of the quality of the pending asylum application is required.” Page 13.

“An applicant for admission at a U.S.-Canada land border port of entry may be denied admission by CBP and referred to an asylum officer for a threshold screening interview, even though he or she has a passport that contains a U.S.-issued visa.” Page 14. 8 CFR section 208.30 (e)(6)(iii)(E)


Persons who request asylum at certain ports of entry are ineligible to pursue their claims unless they qualify for an exception. Page 16. One exception is having a certain relative who is in valid status or has an asylum application pending. Page 17.

Comments of the author

United States v. Malenge, 294 Fed. Appx. 642, 644-45 (2d Cir. 2008), involved a citizen of the Democratic Republic of Congo, who boarded an Amtrak train in Montreal, Canada, bound for New York City. She was arrested at the border when she attempted to use a false passport. She was indicted and criminally prosecuted. She claimed her husband was an asylum applicant in Connecticut.

She argued that being criminally prosecuted unfairly impinged upon, and damaged her asylum claim. The Court ruled against her, but nonetheless criticized the U.S. prosecutor.

The Court stated:

We note as well that, under the Agreement Between the Government of the United States of America and the Government of Canada for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, U.S.-Can., Dec. 5, 2002, available at http://www.uscis.gov/files/article/appendix-c. pdf, some aliens arriving in the United States from Canada at a land border port-of-entry may be returned to Canada to seek protection under Canadian immigration law. See Maharaj v. Gonzales, 450 F.3d 961, 977 n. 11 (9th Cir.2006) . This “Safe Third Country Agreement” is intended to prevent forum-shopping by asylum seekers, and to promote the orderly handling of asylum claims along the United States-Canadian border. Under an exception created by Article 4 of the Agreement, Malenge was entitled to pursue asylum in the United States at the time of her arrival, because her husband was already living here as a refugee with a pending asylum claim. However, United Nations observers who are evaluating the Safe Third Country Agreement have seen a number of prosecutions similar to Malenge's.

…. The UNHCR report also found that refugees were detained for significantly longer amounts of time on average when they were prosecuted for using false documents,

suggesting that such prosecutions are impeding the expeditious processing of asylum claimants.

Reprinted with permission.

About The Author

David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.