Since U.S. President Donald Trump took office, he has signed executive orders rolling back diversity and equity policies and decreeing that the U.S. government only recognizes two genders.Chip Somodevilla/Getty Images
Canada’s Immigration and Refugee Board is assessing refugee claims using outdated briefing documents about the U.S. that fail to mention President Donald Trump’s edicts on mass deportations and detention, as well as his orders rolling back the freedoms of non-binary and trans people.
Lawyers representing refugee claimants and migrants facing deportation from Canada are calling for an urgent update for the official package of documents on conditions in the U.S.
National documentation packages are used by the IRB, an independent body that considers asylum claims.
The packages, which include briefing materials from a variety of sources about conditions in different countries, are also used by Immigration Department staff to help assess the risk posed to foreign nationals facing deportation.
The U.S. package of documents was last updated in January, 2024, when Joe Biden was president.
Lawyers warn that failure to update the U.S. file could lead to flawed decisions and more challenges of decisions in court, leading to even bigger backlogs of immigration cases.
Immigration lawyer Yameena Ansari, whose client, a young transgender American, filed an asylum claim with the IRB last month, warned that the outdated file creates a “dangerous blind spot” for adjudicators. She said claimants “are being assessed against an artificial version of the United States − one that no longer exists.”
“That can lead to wrongful decisions, and potentially life-threatening deportations,” she said. “The IRB’s documentation must reflect the current reality on the ground.”
The IRB collates packages of extensive briefing material about countries, including about human-rights violations, visas and minority rights.
Earlier this month, a Federal Court justice in Canada halted the deportation of Angel Jenkel, a non-binary American, because an immigration officer who conducted the risk assessment had relied on the outdated briefing material and failed to take into account conditions for LGBTQ, including non-binary people, since Mr. Trump took office.
The current U.S. package includes a raft of documents such as a 2023 Amnesty International analysis of the U.S.; a 2023 paper from U.S. Citizenship and Immigration Services on regulations on Aliens and Nationality; and a 2023 paper by the Center for American Progress entitled Discrimination and Barriers to Well-Being: The State of the LGBTQI+ Community in 2022.
Since Mr. Trump took office in January, he has signed a raft of executive orders rolling back diversity and equity policies and decreeing that the U.S. government only recognizes two genders: male and female. This means that non-binary Americans can no longer have an X on their passport.
Mr. Trump has abolished the U.S. government’s diversity, equity and inclusion departments and taken steps to exclude transgender people from the U.S. military. He has also introduced policies leading to mass deportations of foreign nationals, visa restrictions and increased detention of asylum seekers.
Ms. Ansari said because the U.S. documentation package does not reflect new developments, her team is having to “fill in the gaps” with custom research, and often has to charge higher fees to cover the extra work.
Ninette Kelly, a former IRB adjudicator, said that when she was making decisions “country packages were an important source of evidence to help assess whether or not a claimant would be at risk if returned to that country.”
“It’s super essential that the packages are updated. If not, they are not reliable. This can lead to erroneous decisions − which in refugee claims can put the claimant at risk,” she added.
Immigration lawyer Maureen Silcoff warned that decisions based on a national documentation package (NDP) with out-of-date information could prompt more challenges of decisions in court, leading to further judicial backlogs.
“The NDP is regularly updated, but not necessarily frequently enough to reflect evolving situations in specific countries. In the U.S., the situation has greatly deteriorated for particular groups,” she said.
Those assessing cases − including immigration officers making preremoval risk assessments − should also do their own research on current country conditions, she said.
The number of preremoval risk assessments is expected to increase significantly if a government bill going through Parliament, restricting access by asylum claimants to IRB hearings, becomes law.
The Strong Borders bill would mean that anyone making an asylum claim who has been in Canada for more than a year would not be entitled to a hearing with the IRB but would be put on a fast track to deportation.
Before they are forced to leave the country, they will be entitled to ask the Immigration Department to carry out a preremoval risk assessment to judge if they will be in danger if they are deported.
Adrienne Smith, the lawyer who represented Mx. Jenkel, said the national documentation package is “extremely important” in assessing such cases and it should reflect “political realities.”
“In many cases, the reports in the NDP are the only country-conditions evidence that is considered by the decision maker, as was the case for Mx. Jenkel,” she said.
She said that “conditions have changed significantly since President Trump’s election in November, 2024, so the NDP should be updated accordingly.”
The IRB said in a statement that national documentation packages “support the refugee determination process.”
“Decision makers may consider the NDP, but each case is adjudicated on its own merits, based on the specific facts and evidence presented in the case,” it added.