The U.S. is no longer a safe harbour for domestic violence refugees, but crossing into Canada is often impossible – The Globe and Mail

Report on Asylum Seeker Case and Implications for Sustainable Development Goals

1.0 Executive Summary

This report analyzes the case of Claudia Ensuncho Martinez, a Colombian national who sought asylum in Canada after fleeing severe gender-based violence. Her case highlights significant challenges in the international refugee protection framework, particularly the disparities between Canadian and United States asylum policies under the Safe Third Country Agreement (STCA). The analysis demonstrates how these institutional and policy gaps directly impact the achievement of several Sustainable Development Goals (SDGs), notably SDG 5 (Gender Equality), SDG 16 (Peace, Justice and Strong Institutions), and SDG 10 (Reduced Inequalities).

2.0 Case Background: Claudia Ensuncho Martinez

The subject, a survivor of a near-fatal domestic violence attack in Colombia, undertook a perilous journey with her son through Central America and Mexico to reach the Canadian border. Her experience illustrates critical issues related to international protection and human rights.

• Origin of Claim: The claimant fled Colombia after her ex-partner, who was convicted of attempted femicide, was released from prison and resumed making death threats. This situation underscores a failure of the national justice system to provide security, a key component of SDG 16.
• Journey and Migration Risks: The family traversed the Darién Gap and Mexico, facing dangers inherent in irregular migration routes. This journey highlights the desperate measures individuals take when seeking safety, challenging the objective of SDG 10.7 to facilitate orderly, safe, and regular migration.
• Asylum Attempt in Canada: Upon arrival at the Rainbow Bridge, the claimant’s asylum request was denied by the Canada Border Services Agency (CBSA) under the STCA, which directs most asylum seekers to make their claim in the first safe country they enter (in this case, the U.S.).
• Current Status: The claimant is currently in the U.S. awaiting a review of the CBSA’s decision, facing an uncertain legal process and the risk of deportation to Colombia.

3.0 Policy Analysis: The Safe Third Country Agreement and Gender-Based Claims

The STCA is premised on the principle that both Canada and the U.S. offer robust and comparable refugee protection systems. However, the handling of gender-based violence claims reveals a significant policy divergence that undermines this premise and obstructs progress on SDG 5.

1. Canada’s Position: Canada is recognized globally for its 1993 guidelines on gender-related persecution, establishing a strong legal tradition of granting asylum to survivors of domestic violence. This aligns with the goals of protecting women and promoting gender equality.
2. United States’ Position: The U.S. has a more volatile and restrictive approach. The legal precedent for granting asylum based on domestic violence has been inconsistently applied, subject to political changes, and is considered by the UN refugee agency to be “out of step with international law.” This institutional weakness creates a significant barrier to justice for female asylum seekers, contrary to the aims of SDG 5 and SDG 16.
3. Institutional “Safety Valves”: The STCA contains provisions, or “safety valves,” to admit vulnerable individuals who may face risks in the U.S. However, data indicates these mechanisms are rarely used. The burden of proof placed on asylum seekers, often without legal counsel, makes these safeguards largely inaccessible, representing a failure of institutional accountability as outlined in SDG 16.

4.0 Implications for Sustainable Development Goals

The case of Ms. Ensuncho Martinez and the broader policy context of the STCA have direct and negative implications for the achievement of key SDGs.

• SDG 5: Gender Equality: The refusal to consider an asylum claim from a survivor of attempted femicide, based on her transit through a country with weaker protections for such claims, directly undermines Target 5.2 (Eliminate all forms of violence against all women and girls). It creates a system where a woman’s right to protection from violence is contingent on geography, not on the merit of her claim.
• SDG 16: Peace, Justice and Strong Institutions: The case demonstrates a failure of institutions to provide access to justice (Target 16.3). The Colombian justice system failed to ensure the claimant’s long-term safety. Subsequently, the restrictive application of the STCA at the Canadian border denied her a meaningful opportunity to have her claim heard in a system recognized for its expertise in gender-based persecution. The lack of legal counsel during border interviews further weakens the institutional fairness of the process.
• SDG 10: Reduced Inequalities: The STCA creates an unequal system of protection. An asylum seeker’s ability to access Canada’s refugee system is determined by their mode of entry, not their level of vulnerability. This contributes to the inequality of outcomes for migrants and refugees, in opposition to the principles of Target 10.7.

5.0 Conclusion

The experience of Claudia Ensuncho Martinez serves as a critical case study on the disconnect between international commitments to refugee protection and the on-the-ground realities shaped by bilateral agreements like the STCA. The disparate treatment of gender-based violence claims between Canada and the U.S. creates a critical gap in protection that directly impedes progress toward achieving SDG 5, SDG 10, and SDG 16. The case underscores the urgent need for a review of the STCA to ensure that its application does not result in returning vulnerable individuals, particularly women fleeing violence, to systems that may not afford them effective protection, thereby upholding the universal principles of justice and equality central to the 2030 Agenda for Sustainable Development.

Analysis of Sustainable Development Goals in the Article

1. Which SDGs are addressed or connected to the issues highlighted in the article?

   The article highlights issues that are directly connected to several Sustainable Development Goals (SDGs). The primary SDGs addressed are:

   • SDG 5: Gender Equality: The central theme of the article is the story of Claudia Ensuncho Martinez, a survivor of severe domestic and gender-based violence, including attempted femicide. Her struggle to find safety and protection is a clear illustration of the challenges in achieving gender equality and eliminating violence against women.
   • SDG 10: Reduced Inequalities: The article focuses on the vulnerability of migrants and asylum seekers. It details the perilous journey Ms. Ensuncho Martinez undertook and the systemic barriers she faced due to restrictive immigration policies like the Safe Third Country Agreement between Canada and the U.S. This directly relates to the goal of facilitating safe, orderly, and responsible migration.
   • SDG 16: Peace, Justice and Strong Institutions: This goal is central to the article, which examines the failures and inconsistencies of justice systems. It highlights the Colombian justice system’s inability to provide long-term protection (her attacker was released early), the lack of access to legal counsel for asylum seekers at the Canadian border, and the politically influenced, restrictive nature of the U.S. asylum system, particularly for gender-based claims.

2. What specific targets under those SDGs can be identified based on the article’s content?

   Based on the narrative and details provided, several specific SDG targets can be identified:

   • SDG 5: Gender Equality

     • Target 5.2: Eliminate all forms of violence against all women and girls in the public and private spheres. The article is a detailed account of this target’s relevance. Ms. Ensuncho Martinez suffered extreme physical violence (“multiple stab wounds to her upper limbs, back and chest,” “puncturing her left breast”) and psychological abuse (“he would conscript her daughter into relaying foul messages,” “threatening to kill her”) from her ex-partner, forcing her to flee her home country.

   • SDG 10: Reduced Inequalities

     • Target 10.7: Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies. The article critiques the existing migration policies. Ms. Ensuncho Martinez’s journey (“trudged through jungle and desert,” “rode atop a train”) was unsafe and irregular. The “Safe Third Country Agreement” is presented as a policy that, despite its intent, creates significant barriers and risks for vulnerable asylum seekers, particularly women fleeing domestic violence, thereby failing to facilitate safe migration for them.

   • SDG 16: Peace, Justice and Strong Institutions

     • Target 16.1: Significantly reduce all forms of violence and related death rates everywhere. The attempted murder of Ms. Ensuncho Martinez, where she was “at risk of death” and her co-worker was grievously injured, directly illustrates the type of violence this target seeks to reduce.
     • Target 16.2: End abuse, exploitation, trafficking and all forms of violence against and torture of children. Ms. Ensuncho Martinez’s son, Mathias, is a child victim who was forced to undertake a traumatic and dangerous journey (“Harder to explain to the little boy was why they could not risk slowing down to help fellow migrants immobilized by injuries”) and faces an uncertain future as a refugee.
     • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all. The article provides multiple examples of the failure to meet this target. In Colombia, her attacker was released early because his case “exceeding Colombia’s statute of limitations.” At the Canadian border, asylum seekers must “mount complex legal arguments during border interviews where they have no right to counsel.” In the U.S., asylum decisions are “vulnerable to political pressures,” making access to justice inconsistent and unequal.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

   Yes, the article mentions or implies several quantitative and qualitative indicators that can be used to measure progress:

   • Indicators for SDG 5 (Gender Equality)

     • Prevalence of Intimate Partner Violence: The article notes that Colombia has “rates of intimate partner violence that are still among the highest in the Americas,” implying that the prevalence rate is a key indicator for Target 5.2.
     • Legal Frameworks on Gender-Based Violence: The mention of charging the abuser with “femicide” indicates the existence of laws that specifically recognize and prosecute gender-motivated killings of women, which serves as an indicator of institutional response.

   • Indicators for SDG 16 (Peace, Justice and Strong Institutions)

     • Functionality of Legal Safeguards: The article provides direct data: “Of the tens of thousands of arrivals at the Canadian border, only 15 asylum seekers have requested a deferral of removal… The CBSA’s escalation protocol… has been engaged twice. Thirteen of the deferral requests were denied.” These numbers are direct indicators of the accessibility and effectiveness of the “safety valves” within the immigration policy, measuring access to justice (Target 16.3).
     • Access to Legal Representation and Case Outcomes: The article states that in the U.S., “around 90 per cent of unrepresented claimants were denied protection in immigration court.” This statistic serves as a powerful indicator of the correlation between legal representation and access to justice for asylum seekers.
     • Data Collection on Asylum Claims: The article points out a significant data gap: “Canada does not track the reasons why people arriving at its land border are seeking asylum, making it impossible to know how many are fleeing gender-based persecution.” The existence (or lack thereof) of such data collection is an indicator of a country’s capacity to monitor and address specific protection needs.

4. Summary Table of SDGs, Targets, and Indicators

Source: theglobeandmail.com