Comparative study of U S vs Canadian refugee boards
Comparative Study of U.S. vs Canadian Refugee Boards
1. Institutional Structures
United States: U.S. Refugee System
Primary Body: Executive Office for Immigration Review (EOIR), within the Department of Justice.
Key Component: Immigration Courts and the Board of Immigration Appeals (BIA)
Immigration Judges conduct refugee/asylum hearings.
BIA handles appeals on immigration and asylum matters.
Refugee Definition: Based on the 1951 Refugee Convention and U.S. Refugee Act of 1980, which incorporated UN Refugee Convention standards.
Focus: Asylum seekers apply affirmatively (through USCIS) or defensively (in removal proceedings).
Canada: Immigration and Refugee Board (IRB)
Primary Body: Independent tribunal—the Immigration and Refugee Board of Canada (IRB)
Comprises:
Refugee Protection Division (RPD) – hears refugee claims.
Refugee Appeal Division (RAD) – hears appeals.
Immigration Division and Immigration Appeals Division (for other immigration matters).
Established in 1989, IRB is a quasi-judicial administrative tribunal, independent of the government.
Refugee claims governed under the Immigration and Refugee Protection Act (IRPA).
2. Procedural Differences
| Aspect | U.S. Refugee Board System | Canadian Refugee Board System |
|---|---|---|
| Status of Hearing | Part of immigration courts within DOJ, less independent | Independent quasi-judicial tribunal |
| Type of Process | Affirmative or defensive asylum process | Refugee Protection Division for claims |
| Appeals | BIA is administrative appellate body; judicial review by federal courts | Refugee Appeal Division (limited availability), Federal Court review |
| Role of Counsel | Right to counsel but not provided by government | Right to counsel but often must be retained privately or pro bono |
| Burden of Proof | Applicant must prove well-founded fear of persecution | Same, but with emphasis on “credible basis” and humanitarian considerations |
| Expedited Process | Expedited removal for certain applicants | "Fast track" process for manifestly unfounded claims |
3. Legal Standards and Framework
Both systems apply the 1951 UN Refugee Convention definition, but Canada also applies ‘Convention Refugee’ and ‘Person in Need of Protection’ categories.
The U.S. Refugee Act of 1980 incorporates the international definition but also has additional grounds for withholding removal.
Canada’s IRPA defines refugees and also considers humanitarian and compassionate grounds in decision-making.
Both systems incorporate non-refoulement principles to prevent return to persecution.
4. Case Law and Judicial Review
Below are detailed explanations of key cases in both countries that illuminate how refugee claims are adjudicated and reviewed.
United States Cases
1. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
Issue: Standard of proof for asylum claims.
Holding: The Court held the standard for asylum ("well-founded fear") is lower than the “clear probability” standard for withholding removal.
Significance: Established that asylum applicants need only show a reasonable possibility of persecution, making it easier to qualify for asylum.
2. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)
Issue: Definition of "particular social group" under asylum law.
Holding: Established criteria to determine what constitutes a social group for asylum claims.
Significance: Influential in shaping how BIA evaluates social group claims.
3. Negusie v. Holder, 555 U.S. 511 (2009)
Issue: Whether persecutors are eligible for asylum.
Holding: Clarified that individuals who aided in persecution are barred from asylum unless forced to participate under duress.
Significance: Reinforced the "persecutor bar" and careful assessment of applicant’s conduct.
4. Kerry v. Din, 135 S. Ct. 2128 (2015)
Issue: Due process in visa denials for asylum seekers.
Holding: The Court ruled that the State Department’s denial of a visa did not violate due process, limiting judicial intervention in refugee entry decisions.
Significance: Showed judicial deference to executive branch in refugee entry cases.
5. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)
Issue: Asylum eligibility based on domestic violence.
Holding: The Attorney General narrowed grounds for asylum based on private violence, requiring connection to state action or particular social group.
Significance: Significantly restricted asylum claims based on gender-based violence.
Canadian Cases
1. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
Issue: Definition of “particular social group” for refugee claims.
Holding: Supreme Court of Canada broadened the interpretation, including immutable characteristics and shared circumstances.
Significance: Set the foundation for social group claims in Canadian refugee law.
2. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
Issue: Procedural fairness in refugee hearings.
Holding: Affirmed that refugee claimants are entitled to fundamental procedural fairness, including reasons for decisions.
Significance: Landmark case defining administrative law principles for refugee board.
3. Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3
Issue: Deference to IRB decisions.
Holding: Supreme Court held that courts should defer to IRB’s findings of fact unless unreasonable.
Significance: Reinforced the administrative law principle of judicial deference.
4. Canada (Attorney General) v. Ogie, 2004 SCC 38
Issue: Definition of persecution and nexus to protected grounds.
Holding: Clarified that persecution must be tied to one of the protected grounds in the Refugee Convention.
Significance: Strengthened legal clarity on refugee claims.
5. Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40
Issue: Convention refugee claims involving membership in particular social groups.
Holding: Provided guidelines for determining social group membership and nexus to persecution.
Significance: Provided nuanced criteria for claim assessments.
5. Comparative Insights
| Aspect | U.S. Refugee Board | Canadian Refugee Board |
|---|---|---|
| Independence | Part of DOJ, less independent | Independent tribunal |
| Judicial Review | Federal courts review BIA decisions | Federal Court reviews IRB decisions |
| Social Group Definition | Narrower, more restrictive post-2018 AG decisions | Broader, as per Supreme Court decisions |
| Procedural Fairness | Basic due process, but limited rights | Stronger procedural fairness protections |
| Appeal Mechanism | BIA + federal courts | Refugee Appeal Division + Federal Court |
| Treatment of Gender-based Claims | More restrictive | More receptive historically |
Conclusion
Both systems implement the UN Refugee Convention standards, but differ in structure, independence, and procedural safeguards.
The U.S. system, embedded within DOJ, tends to have more restrictive asylum criteria and less procedural formality.
The Canadian IRB, as an independent tribunal, offers more transparent, accessible procedures and broader interpretations of refugee grounds.
Case law in both countries reflects these differences—U.S. cases tend toward restrictive interpretations, while Canadian jurisprudence shows a more expansive and rights-protective approach.
RELATED Blog
0 comments