Migrants, asylum seekers face uphill battle to legally enter Canada and U.S., experts say

In the wake of the discovery of four people, including a baby, found frozen after attempting to cross the Manitoba-U.S. border, a Winnipeg lawyer says some migrants may make the move south because of Canada's "broken" immigration system.

It's not known what prompted the group that died near Emerson, Man., nor the seven others who went on ahead to make the perilous journey, but Shimon Segal, a criminal defence and immigration lawyer at the firm of Gindin Segal in Winnipeg, said they might have encountered considerable challenges trying to settle in Canada.

"This is not a good time to be a refugee or an asylum seeker, whether you're coming through a field or otherwise," he said.

One reason might be the 2019 amendment to the Immigration and Refugee Protection Act, which stipulates that refugee claimants who have previously made a claim for refugee protection in another country will be ineligible to make a claim in Canada.

Refugee claims by people who already have made unsuccessful claims here or who have been granted refugee protection elsewhere are also inadmissible. Others are deemed inadmissible because of their criminal records.

"People get here with a thought that Canada is the fair place, and then they find out from someone like me, you're just not eligible. So that's the part that I find really disturbing that isn't being talked about," Segal said.

Meanwhile, people like smugglers might take advantage of desperation and naiveté, he said.

"These are survivors, these are people who have skills way beyond their education in order to keep themselves alive. The one thing that they don't get often is accurate information about what they really need to know when they get here," Segal said.

Steve Shand, 47, of Florida is facing human smuggling charges related to the crossing of the seven Indian nationals, but was granted release from custody with a number of conditions.

The charges have not been tested in court.

Autopsies have begun to determine the identies of the four people found dead in a snow-swept Manitoba field and confirm the cause of the deaths.

RCMP are working with U.S. Customs and Border Protection and the U.S. Department of Homeland Security.

Vaibhav Jha, a journalist with the Indian Express newspaper in India who has been reporting on the deaths, said it is believed the family is from a village called Dingucha, in the state of Gujarat in western India.

A family of four who recently flew to Canada have been listed as missing and their descriptions match the people found frozen last week, Jha told CBC's The Current.

It's not uncommon for people in the village to journey to Canada or the U.S. and try for "a better livelihood," he said.

In a recent trip to Dingucha as part of his reporting, Jha found almost half of the houses in the village were locked because the families had moved to the U.S. or Canada.

Even though Dingucha is described as an affluent middle-class community, people there are drawn to North America by the great American dream, Jha said. 

There has been a trend since about 1990 of people from Gujarat, with good jobs, leaving behind everything they have in India to make a name for themselves in Canada or the United States, he said.

Subsequent generations then set out to meet up with those relatives.

"There are people from their own community, their own village that have already settled in over there. And these [new] people, they expect their own community people to help them out when they reach the U.S. or Canada," Jha said.

Many don't realize how dangerous the conditions can be, he said.

Jha expects this latest case to prompt closer scrutiny by Indian police of illegal traffickers, but he's not sure it will stem the desire of others. The pandemic has hit the Indian economy hard and put more allure in the American dream, he said.

An investigator with Homeland Security said in an affidavit after Shand was initially taken into custody that he was suspected of being involved in a wider human smuggling operation.

Veena Iyer, executive director of the Immigrant Law Center of Minnesota, said some of her clients have tried to go through legal channels to immigrate to the U.S. but have been deterred by exceptionally long wait lists.

Indian nationals who are close relatives of U.S. citizens have to wait over a decade to immigrate to the U.S. because of nationality-based quotas in the U.S., also known as country limits.

The country limits mean different nationalities must wait in lines that move at different speeds, so Iyer speculates that the family who froze to death may have pursued that avenue first.

As a general rule, people make perilous journeys for good reasons, Iyer said.

"Fundamentally, it's about potentially saving the lives of their children, and unfortunately, in the case of this family, in trying to do that … whether it's economically, whether it's to save them from violence, unfortunately, their children perished," Iyer said. 

"Families shouldn't have to do this."

Because both countries make it difficult for those wanting to migrate or claim refugee status, people are prone to being preyed upon with misinformation, Iyer said.

"Not just in India, but in so many places, there are people who are making promises that cannot be kept about the ability to get somebody to the United States safely, to be able to get them a visa," Iyer said.

"Unfortunately, people are just so desperate … that folks believe in those individuals, even though what they are promising is snake oil."