The Decibel - ICE detention and a ‘legal trap’ on the way to Canada

Episode Date: August 11, 2025

An Afghan family fleeing the Taliban and attempting to join relatives in Canada have been held in U.S. Immigration and Customs Enforcement (ICE) detention for months. Their lawyers say they’re stuck in a “legal trap.” Due to the sweeping immigration crackdown and migrant detentions in the U.S., people trying to claim asylum in Canada face a very different reality than they would have a year ago.Sara Mojtahedzadeh is a reporter on the Globe’s investigative team, with a focus on immigration issues. She’ll talk about how this family ended up in this situation, how others are affected by changes to U.S. immigration policy, and the policy changes experts are calling for in Canada.Questions? Comments? Ideas? Email us at [e-mail]

Being in detention of US is not something easy. It's the most difficult part of our journey. But for us, it was like a short terms, like almost four days to a week. The woman you're hearing from came to Canada from Afghanistan in 23. Fearing persecution in her homeland, she obtained a humanitarian visa to go to Brazil. She then made her way to the U.S.-Mexico border and was able to travel onwards to claim asylum in Canada. Her family left Afghanistan in early 2024 to try to join her. Because they didn't qualify for visitor visas, they couldn't fly to Canada directly.

They went to Iran, then Brazil, and then traveled to the southern border of the U.S. The globe is not releasing their names because of the risk they would face in Afghanistan. if they were sent back. I had talked with my family that it's going to be very tough, it's going to be very difficult, but it's going to be a week, not more than that, so you have to be prepared for that. But we never been prepared for months.

Her mother and a sister have made it to Canada. But her father, teenage brother and another sister have been held in U.S. immigration detention since the winter. They're caught in what their lawyers are calling a legal trap. Now they could face deportation. I can't sleep during the nights. When I'm walking, I'm thinking about them. But when I want to go to my bed, I think about them.

And I cannot stop. People trying to claim asylum in Canada now face a very different reality than they would have a year ago. This is because of a sweeping immigration crackdown in the U.S. and Trump's policy of mandatory detention for migrants awaiting deportation and asylum hearings. Lawyers and advocates say that, given the shifting landscape, Canada should change its approach for vulnerable asylum claimants. I have no other solution but bring them to Canada. This is the only country and this is the only hope that I have.

Today, Sara Moshtahedzade is on the show. She's an investigative reporter for the Globe, with a focus on immigration. She's here to talk about how this family ended up in this situation, who else is being affected by this immigration crackdown in the U.S., and what kind of change experts are calling for in Canada. I'm Shannon Proudfoot, guest hosting the Decibel from the Globe and Mail. Hi, Sarah. Thank you for joining us. Thanks for having me.

So we heard off the top here from an Afghan woman who came to Canada in 2023. Can you tell us what her journey to get here was like? Yes. So she is the daughter of a family in Afghanistan. The dad worked for the U.S. military. She and her sisters were all highly educated women, and they were also all members of the Hazara ethnic group, which is an ethnic group in Afghanistan, and that's also a religious minority. So for all of those reasons, she and her other family members were vulnerable to persecution. She had been working for a Western aid organization, and because of that and the other factors I mentioned, decided to flee the country in 2023.

she was able to leave before the rest of her family because she had a passport and the rest of her family members or many of her other family members didn't. So she left the country first and was able to come to Canada in 2023 and was granted refugee status here the following year. Right. If we cast our minds back to August of 2021, when the U.S. pulled out of Afghanistan, there was a lot of chaos as thousands of other people tried to flee fearing persecution. by the Taliban. And so when this woman, she had been in Canada for a few years, and last year, members of her family tried to join her here. Can you tell us what their journey was like? Yeah, exactly. So essentially after the daughter who settled near Toronto was able to gain

refugee status and her family in Afghanistan was able to obtain passports, they essentially tried to replicate her journey to Canada and join her here. And the plan, was to cross at the U.S.-Canada border and claim a refugee status under this exemption that is contained in a refugee agreement between the United States and Canada that allows for family reunification essentially. So that was the plan, but unfortunately it didn't unfold like that. So just to kind of remind ourselves, asylum seekers who travel through the U.S. are normally not eligible to cross into Canada because of this treaty called the safe third country agreement, which requires people to claim asylum status in the first country they land in. It's an agreement

between the U.S. and Canada. So if someone crosses into the U.S. at the southern Mexican border like this family did, they wouldn't be able to claim asylum in Canada and vice versa. That's the situation they were caught in there, basically. That's right. So if you travel through the U.S. or we're living in the U.S. or essentially, yeah, pass through the United States. In most cases, that will mean you are not eligible to claim asylum in Canada. You have to do it in the United States. However, there are these exceptions, again, including one that allows for family reunification if you have a close family member who is a legal resident in Canada. So this family had good reason to think that they would be okay to go that route and make use of that exemption.

but instead they ended up in iced detention. Can you tell us what you know about how that happened? Yeah. So, I mean, first of all, the family couldn't fly directly to Canada because they would have needed a visitor's visa to do that, which usually requires proof that you're going to leave the country after six months. So instead, they were planning on taking this route by land through the United States. So they arrived at the U.S.-Mexico border in early 2024.

And essentially, at that time, under the Biden administration, what you had to do to cross lawfully into the United States was log on to this app called CBP1. And an algorithm would essentially dole out a certain number of asylum appointments every day. And if you got one of the appointments, you could cross legally into the United States. And if you didn't, you had to wait in Mexico until you got an appointment. This raised a lot of concerns because obviously many people were not getting appointments. And similarly, this family waited for months and months and months, didn't get an appointment. And then finally, at the end of 2024, so late December, 2024, they decided to cross unlawfully in an effort to try and finally get to the Canadian border. But they were then apprehended by immigration officials at the U.S.-Mexico border and placed in detention.

I see. So this would have been at the point when there was more stringent enforcement after the second Trump administration took effect. And so it sounds like this family's story would have been very different if it had happened a year ago. Can you tell us what else you know about what happened right after they were apprehended? What's a little bit of the minute by minute of what happened to them? Yeah. So essentially there was a group of this woman's family who crossed together. It included her mom, her dad, and a few of her siblings. They were. arrested and they were all placed in ICE detention facilities. For reasons that are still unexplained, the mom and one of the siblings was released and were allowed to carry on their journey to the Canadian border where they were granted entry under one of these family reunification exemptions and they have now been able to lodge refugee claims here in Canada. The father and two siblings remain in detention. Again, we don't know why some of the family was released and some weren't. But what we do know is that since January, Trump's inauguration, he has essentially

upended immigration enforcement and asylum policy in the United States and move toward this model of mandatory detention. So previously, you know, had this family been able to cross when they first arrived at the U.S. Mexico border in early 2024. At that time, immigration officers had much wider discretion and latitude to detain and then release someone, for example, if they have a well-documented asylum claim. And it's clear, you know, they're headed to the Canadian border to claim asylum under one of these exemptions or they have a strong asylum case. You know, they'd likely be released. I see. But under this mandatory detention policy, essentially, you're going to be detained and you're probably not going to get out. And so that's the situation

that this family is currently in. I see. And you've written, I think, from one of the family's lawyers, they've described the situation they're in as a legal trap. Can you walk out for us a little more, this catch-22 they're stuck in now as they're detained and stuck in the United States in that detention state? Yeah, and it all comes really down to sort of the travel restrictions that this family is bumping up again. So again, they couldn't fly directly to Canada because that would have required essentially a tourist visa, which they're not tourists. They weren't planning on being tourists. Government lawyers have said that they will release the family from ICE detention if they agree to depart by air. But again, that would require a visitor's visa,

which this family doesn't have and is not eligible to get. So that leaves. only one other channel for them to get to Canada by plane and that's something called a temporary resident permit, which is essentially a sort of discretionary case-by-case permit that the Canadian government can issue in special circumstances where someone would otherwise be inadmissible to Canada. So their lawyers have now made an application for one of those permits and are obviously hoping that the Canadian government agrees to issue that before this family is. potentially deported. Wow. So the temporary resident permit would allow them to fly to Canada. They don't have that yet, but the ICE officials have said they will not release them unless they get on a plane to travel to Canada rather than by land. So that's where they're stuck. Exactly. And from what I've heard talking to lawyers who have worked on these types of cases in the past, you know, again, under previous administrations, ICE would sometimes facilitate people's

ability to get to the Canadian border so that they can file claims under one of these exemptions. So they would, you know, agree to bring people to the Canadian border. That's not happening anymore. And again, ICE's position is that the family must depart by air, even though they obviously have currently no way of actually doing that. So what do we know about their condition right now? It's a father, teenage brother, and one of the sisters who are still in detention? What sort of circumstances are they in right now? Yeah, I was able to to the sister who's in detention at the moment through an app that ICE operates that allows some communication with detainees. She was obviously very distressed. She said that at the time

that we spoke, she hadn't been able to leave her cell in about two weeks. She said there were between 90 and 100 women in the cell with her. She talked about poor access to medical care, you know, the food she said was being served was causing a lot of illness amongst her and the other cellmates, but again, difficult to access medical care. She said that one of her fellow cellmates was pregnant and placed in solitary confinement and ultimately lost the baby. Oh, goodness. But her, I think her overwhelming concern was really for her dad and brother. Her brother is just turned 18 and has a seizure disorder. Her father also has health issues. And so she was very concerned at the conditions that they were being held in in a separate detention facility. And actually not long after we

spoke, her brother was hospitalized. And the family has been struggling to figure out what sort of state he's in. We'll be right back. So, Sara, it sounds like in this case changes to the U.S. immigration system are having spin-off effects for people in Canada who are trying to claim asylum here. Are we seeing any other similar cases? Yeah, I mean, a different but related case emerged just over the past weekend. A van that had crossed or was waiting essentially at the Quebec-Fermont border was intercepted by CBSA agents and they found 44 asylum seekers inside, mostly Haitian nationals, who were trying to claim asylum in Canada and for context. The Trump administration has recently sought to end a number

of programs that offered protection to Haitians, whose country is obviously a lot of turmoil at the moment. But again, under the terms of the Safe Third Country Agreement, you know, only a limited number of asylum seekers would be eligible to cross into Canada. So we don't have the numbers, but we know that at least some have been now returned to the United States under the terms of that agreement, which obviously raises concerns given this mandatory detention policy that Trump has implemented, that these families will be detained and possibly deported. And I think that the issue with the mandatory detention policy is often related, to the difficulty in accessing legal support.

So say, for example, you disagree with a Canadian border officials' decision to not grant you an exemption to the safe third country agreement because you have a sister, your dad, or your mom is in Canada. You know, if you're turned around and detained and are possibly, you know, even deported, your ability to access legal support to challenge that CBSA decision is very limited. And so the consequences of the decisions that are happening at the northern border under the safe third country agreement now just have added weight because of the policies that President Trump has implemented south of the border. So it sounds like there are two things happening here. As you said, the consequences are worse for people if this doesn't work out. But is it also the case that more people are trying to come into Canada because of the changing situation in the U.S.? Not necessarily. And actually the CBSA's data shows year over year.

There's been a 46% decrease in the number of asylum applications that they've processed. So this would be asylum applications made at a border port of entry. However, anecdotally speaking to community groups and lawyers, we are hearing that in response to certain initiatives by the Trump administration, we are seeing little spikes in. in certain communities seeking protection in Canada. So Haiti is a perfect example of that because we're seeing President Trump roll back some of these programs that offered protection to Haitians and those are now being dismantled.

And so we are anecdotally hearing of people from those communities seeking protection in Canada in response to those developments. Okay, understood. Now, even as we're seeing these shifts in the U.S., our own immigration system here in Canada, has seen some big changes over the past year. Can you walk us through some of how that is playing out? Yeah. So like I said, the safe third country agreement in 2023 expanded to cover the

entire land border. So again, that has resulted in a sort of smaller flow of asylum seekers crossing into Canada. But more recently, the new federal government introduced legislation that would essentially impose some more limits on the safe third country agreement. There was some provisions that essentially said that if you made an irregular crossing into Canada and remained in Canada undetected for 14 days, that you could then claim asylum in Canada. And they're seeking to close that piece of the legislation. Right. That's the Strong Borders Act, right? Which in itself was a Canadian response to the Trump administration's critique of Canada's border policies. Yeah, exactly. There seems to be an effort to sort of deal with the Trump administration's concerns over border crossings. And so there's that provision and then another provision that will introduce a one-year time limit on when you can file asylum, which somewhat mirrors what the United States has. So, yeah, some developments on sort of how we deal with asylum here in Canada as well.

Sarah, I know you've spoken to legal advocates who no longer see the U.S. as a safe country for asylum seekers, which is a crucial element here logically because the safe third country agreement operates under the assumption that both countries are safe for asylum seekers. Has there been any broader movement to push back on how Canada is administering that treaty based on how things are changing on the ground in the U.S. quite rapidly? Yeah, I mean, this is a longstanding question surrounding. this treaty. It's been subject to litigation over the years questioning the legality of the agreement. In 2023, the Supreme Court did rule on one piece of one of those legal challenges and essentially found that the agreement was constitutional so long as it had these sort of safeguards that allows Canadian border officials the ability to make exceptions for not only family reunification and that sort of thing, but also just cases of folks who may experience

particular risk or persecution in the United States. So, but there's several other active legal challenges that are calling into question the agreement. You know, there are many in the sort of refugee world who would say we should scrap the agreement altogether, or at the very least, expand some of those exceptions that we already have to offer protection to people who now might be at heightened risk because of what we know is happening south of the border. So an example might be for asylum seekers who are trans or facing gender-based persecution because we know, obviously, there is a huge difference in approach in Canada and the United States on that issue in particular.

So that is certainly one of the calls that I've heard is to. take another look at how we apply those exceptions. One of those exceptions is what's known as a public interest exception, I believe, right? Which would ostensibly give Canadian officials some latitude to make decisions, but so far, as you've written, the Canadian government's position has been that the U.S. remains a safe third country and that this treaty remains intact as it has been administered. So there doesn't seem to be much appetite for change there yet. That's right. the Canadian government's position is that the U.S. is a safe country. It is legally required to continually review the U.S.'s policies and treatment of asylum seekers

in order to continue to confirm this designation as a safe country. We know very little about that process, and the government does not make public its findings on that front other than to say that the safe country designation continues. So yes, not much change there. Now, Sarah, before we let you go, I want to come back to this family that we started with. What are the possible outcomes at this point for the three people still in detention? Well, the family's hope and their lawyers hope is, of course, that the Canadian government will issue them a temporary residence permit, which would allow them to fly to Canada and file refugee claims here.

But the alternate outcome is that they are deported. They are in expedited removal proceedings in the United States. They have a hearing coming up in the next couple weeks. Afghanistan has obviously has very well documented safety problems. So there is the possibility that they would be deported to a third country, which is a new move by the Trump administration when they're unable to remove people to their home country because of fears of persecution. they are now deporting people to third countries like Rwanda or South Sudan. So that is another possible outcome for this family. Wow. So there's a ticking clock there, both for the Canadian government to potentially provide a solution or for a much more worrying outcome for them then.

Yeah. And I think obviously the hope is that the Canadian government makes its decision before it's too late, essentially, you know, for this family. because once they're returned to Afghanistan or another country, it will obviously become exponentially harder to reunite with their loved ones in Canada. Sara, thank you so much for joining us today. Thank you. That was Sara Moshti Hedzade, an investigative reporter with the Globe. That's it for today. I'm Shannon Proudfoot.

Today's episode was edited and mixed by Allie Graham. Our producers are Madeline White, Michal Stein, and Ali Graham. David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pichenza is our executive editor. Thank you for listening.