Bangladeshi asylum seeker trapped in US detention as Canada refuses return: lawyer

A Bangladeshi refugee applicant has been trapped in US immigration detention for nearly six months after allegedly crossing the border from Canada by mistake, while his lawyer accuses Ottawa of refusing to help bring him back.

Mahin Shahriar, 28, moved to Canada from Bangladesh in 2019 and says he inadvertently entered the United States in a rural area near Montreal while searching for a property on the invitation of an acquaintance he now suspects was linked to human trafficking.

"Then I found myself in the US. It was not my intention," Shahriar said.

After realising the mistake, he approached US immigration officials and was detained. His lawyer, Washim Ahmed, says Shahriar has since been held in "arbitrary detention" despite not committing any crime, says the Guardian.

"My client is in arbitrary detention. He didn't commit any crime. He didn't steal anything, didn't harm anyone or cause trouble. And it's been like this for nearly half a year," Ahmed said.

Dispute over Canada's obligation

Ahmed argues that the Canada Border Services Agency (CBSA) is "hampering his client's return" by refusing to facilitate repatriation and not responding to correspondence since July. "It's not that CBSA isn't accepting him – it's that they won't even respond to us at all," he said.

"Quite simply, they have a legal obligation to bring him back," Ahmed said, citing both the Safe Third Country Agreement (STCA) and a family exception as grounds for Canada's responsibility.

Under the STCA, refugees are generally required to seek asylum in the first safe country they arrive in. Ahmed argues that Canada should apply "those same rules of the agreement" in reverse, because Shahriar was detained by US border officials within 14 days of illegally entering the country.

"In the past we've seen people from the US trying to enter Canada and border officials reject them, citing the safe third country agreement. We're now asking them to apply those same rules of the agreement to this case," he said.

Ahmed also noted that Shahriar's mother, a Canadian permanent resident, has been hospitalized multiple times for severe mental health issues worsened by her son's detention. "If you have a family member in Canada that has legal status or is a refugee claimant – which he had – you are entitled to return," Ahmed said.

He has filed a federal court request to compel the CBSA to issue a formal decision and petitioned Canada's public safety minister for assistance.

Canada's position

The CBSA rejects any obligation to accept Shahriar's return, saying he "left Canada of his own accord" when he crossed into the US.

"By doing so, the border agency says, his removal order went into effect," the CBSA said in correspondence. "Canada has no obligation to accept Mr Shahriar's return, and he is permanently barred from re-entering Canada without an authorization to return."

The agency added that "an independent tribunal that assesses refugee claims found Shahriar 'not to be in need of protection'."

"CBSA says as a broader policy, it does not comment on specific cases and does not intervene on behalf of foreign nationals subject to immigration enforcement in another country."

US complications

Shahriar's situation has been further complicated by the position of US immigration authorities. According to Ahmed, US Immigration and Customs Enforcement (ICE) officials have determined that Shahriar would face risks if sent to Bangladesh.

"Ice has looked at his case and concluded he would face risks in Bangladesh, so they won't send him there," Ahmed said.

However, he said ICE will not transfer Shahriar to a Canadian examination centre without approval from the CBSA. "Ice will not bring Shahriar to an examination centre without prior approval from the CBSA," he said, adding that US officials had reached out to Canadian counterparts "and faced resistance."

Ahmed says Shahriar is eligible under Canadian law to apply for a pre-removal risk assessment (PRRA), since more than a year has passed since his initial refugee claim was rejected.

"And so we want to apply for pre-removal risk assessment because we're confident Canadian officials will see the dangers he will face if he was ever sent back," Ahmed said.

Shahriar remains detained in the United States, uncertain of his future. "He doesn't know where he's going. He can't be deported to Bangladesh. He needs to go back to Canada," Ahmed said. "And so we're asking Canadian officials to do what's right – but also what they're legally obliged to do."