Roberto Carlos Teran Rivera had every right to try to join his wife in Canada.
All the asylum-seeker had to do, by law, was show up at an official crossing point along the U.S.-Canada border and make his claim.
But a twist of fate saw Teran Rivera choose the wrong “door” for his entry into this country.
Now the 39-year-old sits in a holding cell in New York, awaiting deportation next Thursday to Nicaragua, a country Amnesty International says is in a “human rights crisis” under President Daniel Ortega’s dictatorial regime.
This week, Teran Rivera’s last-ditch effort to be released — and join his wife, Blanca Maydeling Castillo Saenz, a refugee claimant in Quebec — was refused by a New York court.
“The court recognized that Teran Rivera’s alleged plight is sympathetic on a human level,” wrote U.S. District Court Judge John L. Sinatra, Jr. in dismissing the detainee’s plea for release.
“The political branches of government — not this court — have authority to address such concerns.”
How did it all go so wrong?
Castillo Saenz says she and her husband, along with her brother, fled Nicaragua in November 2018 via Honduras, El Salvador and Guatemala before arriving in Mexico. The three were separated after crossing into the U.S. and were detained at different facilities.
Teran Rivera was deported back to Nicaragua after a month, but Castillo Saenz was released shortly after and ultimately made it to Canada in June 2019 for asylum.
Late last year, her husband returned to the U.S. again and made his attempt to join her in Canada.
Asylum seekers are often turned back at the Canada-U.S. border. Under the Safe Third Country Agreement that’s been in place since 2004, each country recognizes the other as a safe place to seek protection. That means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border on the basis they should pursue their claims in the States, the country where they first arrived.
However, exemptions are granted to those — such as Teran Rivera — who already have family members in Canada.
He would have been allowed in at a land port of entry.
Teran Rivera’s critical mistake was trying to cross into Canada through a side road connecting Quebec and Vermont.
While Teran Rivera could have just breezed past a Canadian port of entry to join his wife, he followed the now-famed Roxham Road, an unguarded border point in Quebec, into Canada instead.
Under border restrictions imposed during the COVID-19 pandemic, all such irregular migrants have been banned and subject to return to the other country.
Teran Rivera said he was apprehended by Canadian officials upon crossing into Quebec.
“I don’t know why he didn’t cross through an official port of entry,” Castillo Saenz told the Star this week through a translator.
“I was waiting for the call from immigration to meet with him in Canada, but, sadly, I received a call where I was informed my husband was detained by U.S. immigration.”
Even then, the door wasn’t meant to be shut on him permanently.
Canadian officials handed him a piece of paper to go back to the U.S. He said he was told “this was temporary” and that he could carry on applying for protection in Canada later.
However, Teran Rivera has been held at the Buffalo Federal Detention Facility in Batavia, N.Y., since January.
In his plea under a habeas corpus application, he said he shouldn’t have been detained in the U.S. when he had a lawful right to enter Canada and wished to immediately “self-deport” to the north of the border.
“My intention was always to reunite with my wife, who is in Canada. If I had been allowed to ask for admission to Canada, I would have,” he said in an affidavit filed with the U.S. court as part of his petition for release. “I feared for my life and I still do fear for my life in Nicaragua.”
Heather Neufeld, a University of Ottawa immigration law professor, says Canadian officials have made it clear in Teran Rivera’s “direct back order” that he was not being found inadmissible or ineligible to make an asylum claim here.
He was turned back only as a result of the Order in Council that presently bans non-essential border crossing, she said, and letting him come to Canada would not have frustrated the purpose of the Safe Third Country Agreement.
“There is simply no official mechanism through which Canada Border Services Agency could have processed Mr. Teran Rivera under the STCA exception without him leaving and re-entering, given that he did not initially enter Canada at a port of entry,” Neufeld noted in an affidavit as a legal expert for Teran Rivera.
However, the U.S. justice said the district court did not have jurisdiction over requests to stay a removal order, let alone to make a declaration to deport him to Canada only.
Maureen Silcoff, president of the Canadian Association of Refugee Lawyers, says human rights in Nicaragua are at a crisis point and last year Canada granted asylum to 90 per cent or 155 of the 171 Nicaraguan refugee claimants here.
“This request for refugee protection went off the rails,” Silcoff said. “He came to the Canadian border at Door A instead of Door B, so instead of having his protection needs assessed in Canada based on his wife being here, he is now caught in a web of detention and removal in the U.S.
“There has to be a better way. Canada Border Services Agency turned him away and handed him over to the U.S. Department of Homeland Security, who jailed him and scheduled him for deportation, even though Canada said he could come back.”
Canada Border Services Agency did not respond the Star’s request for comment.
“The U.S. court was sympathetic and said a political branch of the government could deal with the problem,” she said. “Officials must pull the plug on his removal and allow him to come to Canada. The time to act is now, before it’s too late.”