In the twenty years since the September 11, 2001 (9/11) terrorist attacks, Canada and the United States have placed increased restrictions on the mobility and rights of migrants. Particular emphasis has been placed on constraining the ability of the uninvited—those migrants not pre-selected as immigrants or resettled refugees—to arrive and make an asylum claim, or to access a range of procedural guarantees and protections if they do arrive in either country. Implicit in the volume of scholarship that has since documented changes to both countries' national security, criminal law, and immigration regimes is the notion of 9/11 as an inflection point. While that is certainly the case, it is less clear that 9/11 is the key sculptor of contemporary immigration and refugee law.

Understanding the specific relationship between 9/11 and refugee law is the chief objective of Obiora Chinedu Okafor's latest book. A longtime professor and the inaugural York research chair in international and transnational legal studies at Osgoode Hall Law School, and now the Edward Burling chair of international law at Johns Hopkins School of Advanced International Studies, Okafor brings his international experience to bear on the question of how—if at all—9/11 changed refugee law in Canada and the United States. The book is a comprehensive analysis of the securitization of migration in both states, the factors that propelled changes in the law, and the relative merits of each state's approach. Scholars of migration and refugee law, criminal, and national security law, and Canada–U.S. studies will all find it of great value.

Okafor's major contribution is not the cataloguing of the ills of the refugee system, but his explanation of the specific impact of 9/11 on that system. Identifying all post-2001 changes to migration law as caused by the attacks understates the other factors shaping the law, as well as the overall rights-restricting trend that was identifiable before 9/11. Okafor lucidly traces these histories, explaining how and where 9/11 did and did not play a role. He acknowledges as well that minimizing 9/11 as a causal factor risks downplaying its significance as a shared experience of latent, visceral fears about foreigners that—even if it did not change the path of the law quite as much as one might expect—did and does help to normalize the law's increasingly suppressive tendencies. As Okafor notes, the “consequent sense of mass security vulnerability” that followed the 9/11 attacks made any reform efforts far less likely to succeed (p. 72).

Any text seeking to assess more than twenty years’ worth of legal changes in two different states, as well as identify the causal factors behind those shifts, will have a tremendous scope. Engaging in such a task raises important questions about structure and organization, as well as breadth and depth. Okafor divides the text into six chapters. Aside from an introduction that outlines the comparative nature of the work and the timeline to be studied (both pre- and post-9/11), and a conclusion that briefly analyzes how “security-relative” refugee rights are in the two countries, there are four substantive chapters. The book starts by addressing the position of Canada and the United States on the permissibility of and conditions placed on proposed deportations to torture. It then assesses the scale and evolution of each state's respective immigrant and refugee detention systems. The fourth chapter examines how both countries apply terrorism-related inadmissibility decisions, and the fifth considers the interpretation and application of the bilateral Canada-U.S. Safe Third Country Agreement (STCA)Footnote ¹ concluded between the two states in the immediate aftermath of the 9/11 attacks.

By examining these four areas, the work covers the key aspects of refugee law one might expect to be affected by the 9/11 attacks. The challenge is more the breadth and depth of the information to be conveyed—any one of the main four chapters could be a book in its own right. For each chapter, the subject is first introduced, before the American and Canadian regimes are assessed according to a set of contextualized criteria developed by Okafor himself. The content of each of the four sets of “indicators” are developed uniquely for each area; there are up to a dozen per chapter. This typology is itself a valuable contribution. For each indicator, Okafor describes the U.S. and then the Canadian position, continually referencing domestic cases, policy documents, and legislation across both countries (as well as relevant international treaties, judicial decisions, and interpretive statements). The level of detail is forensic, and while Okafor explains the law and his assessments plainly and concisely, he clearly has high expectations of his readers.

Okafor's overriding thesis is that while the 9/11 attacks have played an important role in the law by largely (but not always) providing a justification or impetus for making protection more inaccessible and more punitive for migrants, these changes are rarely fundamental. Rather, they have built on a regime that itself has consistently (if not perfectly) trended toward making it harder for non-citizens to legally arrive and remain in both countries.

More relevant than 9/11 are efforts made in the 1990s. In the United States, Okafor points to terrorist attacks and Clinton-era legislation such as the “merciless” laws of 1996: the Illegal Immigration Reform and Immigration Responsibility ActFootnote ² and the Antiterrorism and Effective Death Penalty Act,Footnote ³ which together permitted more extensive detention of non-citizens, greater ability to deport individuals in the face of a risk of torture, and restricted access to asylum, including through the introduction of the requirement that asylum seekers file their claim within one year of entering the United States (pp. 72–75).Footnote ⁴

Similar conclusions can be drawn about Canada, where the now-governing Immigration and Refugee Protection Act (IRPA)Footnote ⁵ generally included the legal foundation for many of the legal tools criticized for their negative impacts on migrants. While the IRPA came into force in 2002, its content was largely settled prior to the 9/11 attacks. The clearest example is the notion of the “safe third country,” which was included in the predecessor Immigration ActFootnote ⁶ even though Canada had not identified any such “safe” third country. The general idea was reproduced again in the IRPA, and became effective after 9/11, but the basic concept had been present in the law since the 1980s.Footnote ⁷ This is not to say that post-9/11 changes were immaterial; only that the attention given to 9/11 is sometimes disproportionate to its actual impact.

Relatedly, the 9/11 attacks did not always degrade rights. In some limited circumstances, the greater visibility granted to pre-existing legal regimes combined with their increased utilization by the state eventually led to small but significant improvements (p. 101).Footnote ⁸ While the case for 9/11 having an ameliorative impact should not be overstated, the counterexamples help explain how the trajectory of refugee protection post-9/11 is the product of push-pull tensions produced by multiple variables.

Without explicitly identifying it as such, the book essentially applies a “crimmigration” lens to migration law in both countries. Crimmigration suggests that the boundary between criminal and immigration law is increasingly blurred.Footnote ⁹ This convergence flows from a variety of sources, but rests on the understanding that both areas of law regulate the terms of an individual's membership in society.Footnote ¹⁰ Studies of deportations to torture, detention regimes, the ascription of terrorist labels to migrants, and even the closure of the border to certain asylum seekers, can all be understood as a form of membership regulation governed by the interaction between criminal and immigration law. Okafor's detailed analysis of the overall depredation of rights protections for migrants subjected to new, narrower, and more punitive refugee regimes supports the view of crimmigration scholars that what is particularly troubling about the importation of criminal law into the migration sphere is that the procedural protections that are attendant in criminal cases do not follow when that law is brought to bear in the administrative sphere of refugee law. In both Canada and the United States, this practice presents in a variety of ways: increased detention rates, increased grounds for detention, increased grounds for inadmissibility, reduced access to appeals or extraordinary remedies, and so on.Footnote ¹¹

The crimmigration literature also explores a separate phenomenon that presents in the securitization of migration law: the practice of reinterpreting language that sounds as though it requires the criminal law standard to be satisfied by the state, when in practice it is defined as significantly lower. Okafor's examination of detention practices and terrorism related-inadmissibility (Chapters 3 and 4) highlights the problem. As an example, the Canadian equivalent to “probable cause” requirements in the criminal law is “reasonable grounds to believe.” In the criminal law, this means the state must have the subjective belief that the suspect has committed the offense, and that a reasonable person would have the same belief. This requires something less than a prima facie case, but something more than a balance of probabilities. However, as applied in both U.S. and Canadian refugee law, the phrase means something less than the civil standard of a balance of probabilities that is more akin to the Canadian standard of reasonable suspicion, which requires that the allegation be possible (rather than probable) (pp. 88–90, 97). Whether one standard or the other is appropriate is a separate issue; the point is that the language of the law obscures its coercive force by falsely projecting the sense that the procedural protections of the criminal law have been transposed to migration law alongside its punitive aspirations.

Okafor's careful cross-border study of the impact of 9/11 also benefits crimmigration scholarship beyond merely identifying the modalities of criminal law's application to migrants, or its disconnection from the criminal law norms that would otherwise protect the objects of its attention. It supports crimmigration's proposition that criminal law is not merely a tool but an ideological component of migration law. Crimmigration says migration law internalizes the values and perspectives of criminal law's enforcement regime.Footnote ¹² In this light, Okafor's study provides an empirical assessment of how migration law has incorporated foundational precepts of criminal law as the natural source of the refugee regime and its goals.

Teasing out evidence of the role of 9/11 in migration law helps to contextualize these crimmigration claims. The analysis of terrorism-related inadmissibility in Chapter 4 is one example. Okafor notes that both countries have given effect to this form of migrant exclusion for many years, but that 9/11 had a different impact in each country. For the United States, the PATRIOT Act, REAL ID Act, and other post-9/11 changes significantly expanded the state's ability to identify a non-citizen as a terrorist or someone who offers “material support” to a terrorist/organization (pp. 135–40). While such a designation already existed, 9/11 spurred the removal of important limitations that in various circumstances required knowledge or endorsement of the organization's terrorist activities. Canada similarly included terrorism-related inadmissibility prior to 2001, and also broadened the scope of its anti-terrorism clauses post-9/11. Yet it did not go as far as the United States, allowing for justifications or excuses to be raised when a migrant is confronted with allegations of material support (p. 157). Thus the impact of 9/11 differed in both states. At the same time, Okafor argues that both countries' extensive histories of applying terrorism-related inadmissibility meant the overall legal effect of 9/11 was minimal: neither state had much space left to reduce the protections afforded to those accused of engaging in or supporting terrorism (p. 178).

This is not to minimize the harms occasioned by the legal changes that flowed from 9/11 or the impact of increased enforcement of new and pre-existing rules. The point is the impact of 9/11 can only be assessed by considering the application of the laws as well as their redefinition. Thus, while Canada's laws are not significantly better at protecting migrants, the far greater scale of American enforcement is essential to evaluating both regimes. This is clear from Okafor's assessment of the migrant detention systems in Chapter 3. Here he outlines the expansion of the use of migrant detention in both states, as well as the role of “boat people” in prompting harsher detention regimes in both states. Increasingly punitive detention regimes are justified on the basis that they will deter migrants from making the journey to land irregularly in the United States. Mandatory and extended detention regimes have been used in the United States in response to Haitian migrants arriving by boat. But migrant suppression is only one justification for this shift. The other is that deterring boat arrivals allows federal and state authorities to focus agencies such as the Coast Guard on counterterrorism efforts rather than the mundane tasks of interception, interdiction, rescues, migrant screening, and so on (pp. 64–68).

While Okafor rightly suggests it is harder to identify how Canada uses its detention regime as a deterrent because of the smaller scale of detention in Canada and the lack of explicit admissions of deterrence as a rationale, there is evidence that Canada's Designated Foreign National (DFN) scheme was intended as a deterrent measure (pp. 69–70). The DFN scheme prescribes mandatory detention for individuals over the age of sixteen who arrive irregularly in a designated group. The arrival of two ships full of Tamil refugee claimants in 2009 and 2010 prompted the introduction of the scheme, which was described in Parliament as a tool to deter boat arrivalsFootnote ¹³ and the criminals and terrorists they carry.Footnote ¹⁴ In this light, the criminalization of migrants continues in both countries, even as the scale of the detention project in the United States—the largest jailer of migrants in the world—somewhat obscures the problems of a Canadian detention regime condemned by the UN Human Rights CommitteeFootnote ¹⁵ and an internal audit that effectively complained that detention reviews failed to meet basic norms of criminal law.Footnote ¹⁶

The War on Terror figures prominently throughout the text. Nowhere is its centrality more obvious than in the continual redefinition of terrorism and material support for it into a boundless concept that eventually begins to implicate not only anti-apartheid activists such as Nelson Mandela but also allies of the United States in various overseas wars (pp. 139–40, 147). The War on Terror also contextualizes Okafor's discussion of Canadian and American approaches to the question of whether non-citizens can be deported to face torture overseas. It is telling that despite the leading role played by the United States in the War on Terror and its notorious policies of extraordinary rendition, Okafor's first direct comparison between the two countries asserts that the Canadian regime is deficient as compared to its American counterparts in at least one respect.

In Chapter One, Okafor addresses how each state responds to the possibility of removing an individual to the risk of torture. Whereas the United States puts forward a clear blanket policy of not returning individuals to face a substantial risk of torture, both Canadian jurisprudence and statutes create exceptions allowing decision makers to weigh the risk of torture against the security interests of the state. This exception has been condemned by both the UN Human Rights Committee and the Committee Against Torture (pp. 25–27). This is the first of many indicators supporting Okafor's introductory declaration that there is greater convergence between the two states’ systems than might be expected, given the respective reputations of both states and that it was the United States rather than Canada that was attacked on 9/11.

Normative convergence only partially explains the shared punitive approach to migrants and refugees taken by both countries. In Chapter Four, Okafor explains how both the text of the STCA and the Canadian government's continued insistence that the United States remains a safe place from which to make a refugee claim, suggest that the erosion of international norms and safety may take place for a variety of reasons. The primary question here is whether the United States is a “safe” place from which to force asylum seekers to make a claim. This assessment is required on an ongoing basis,Footnote ¹⁷ and has been challenged twice. In both instances, the trial court found that the United States did not substantively comply with international law. On appeal, both decisions were overturned.

As the book is current only through March 2019, Okafor only analyzes the first litigation. In that case, the Federal Court of Appeal overruled the trial court on the basis that what is required is not an assessment of whether the United States is actually safe because it complies with the requirements of international treaties such as the Refugee Convention and the Convention Against Torture, but whether Cabinet assessed those factors or not. As Okafor rightly argues, this denudes judicial review of any significance while also twisting the meaning of the STCA and its enabling Canadian statute beyond recognition (pp. 202–04).Footnote ¹⁸ In subsequent litigation, concluded in 2021, the same court overturned a trial decision that again found the United States to be unsafe primarily on the basis that even though the evidence put forward was current, the applicants had not formally challenged a current decision by Cabinet to designate the United States as safe.Footnote ¹⁹

That the Canadian government continues to be of the opinion that the United States is still a “safe” third country in spite of the deficiencies and drawbacks exhaustively outlined by Okafor, the litigants in Federal Court, scholars, and civil society groups should come as no surprise. Canada initially declined to designate the United States as safe when the safe third country concept was introduced in 1988 because the United States routinely denied asylum (or the right to even make the claim) to certain Central American claimants.Footnote ²⁰ Since then, however, Canadian politicians have been clear that the object of the STCA is to reduce asylum claims in Canada by ensuring that the United States takes responsibility for foreign asylum seekers that transited through its territory on their way to Canada.Footnote ²¹ While the cost to Canada of securing U.S. cooperation was greater coordination in border and national security efforts, the gain was a significant reduction in the amount of asylum seekers presenting themselves to Canada (pp. 209–11).Footnote ²² As a result, this is the one area where Okafor says the question of scale weighs against Canada: thousands more migrants have been denied the right to make an asylum claim by Canada's application of the STCA than have been denied by the United States (p. 218).

This study of the STCA points to how factors other than 9/11 may push either state to shape its migration laws. Canadian harshness toward migrants and cooperation in information-sharing is necessary in order to assure the United States that Canada at least performs border security in a comparable manner. As the smaller partner in both respects, the economic benefit to Canada of continued compliance with U.S. migrant regulation standards is disproportionate (p. 57). Performing convergence is a way of persuading the United States that Canada's migrant regulation regimes are effectively equivalent, and that the American-Canadian border should remain open with minimal restrictions or obstacles to tourism and trade. Okafor is careful to illustrate this history, and—where necessary—put to the sword misrepresentations made by Canadian politicians tasked with explaining and defending the STCA.Footnote ²³

Okafor's time-lapse analysis of legal shifts made after the 9/11 attacks is a valuable demonstration of the need for a historicized understanding of migration law, and takes on added resonance in the context of the STCA. Attention to the draconian nature of many migration law changes initiated during the Trump administration is of course important for a variety of reasons. Yet an unintended consequence of this attention may be its loss of perspective. Overemphasis on the Trump-era law and policy shifts risks detracting from the deeply securitized nature of the pre-Trump migration regime. Okafor's consistent attention to the range of changes and moves made in one direction or another over the two decades since 9/11, and their relationship to migration law pre-9/11, puts the Trump-era in context: it was certainly restrictive and violative of international and domestic norms protecting non-citizens, but that reality was itself the product of a long-term trend that began years earlier.

In setting out the modern trajectory of refugee law, Okafor implicitly describes a final challenge for his work: what is the appropriate timeframe for this kind of causative investigation? Inquiring into the effect of 9/11—the central goal of the book—requires some understanding of what came after and what came before. Okafor is necessarily limited in how far forward he can look: published in 2020, the book is current until March 2019. That date is effectively one year prior to the advent of the COVID-19 pandemic in Canada and the United States, and leaves the changes introduced by that pandemic—including the effective closure of borders to all migrants, including refugees—understandably outside the scope of the work. One wonders what connections or disjuncts Okafor might have drawn between pandemic-era legal changes and the securitization flowing from the 9/11 attacks. Nor can his insights be brought to bear on the recent introduction in Canada of an absolute bar on asylum claims when the person has made a prior claim in any of the other Five Country Conference states (New Zealand, Australia, the United Kingdom, and the United States).Footnote ²⁴ Relatedly, March 2019 is only partly through the presidential term of Donald Trump and entirely before the election of Joe Biden. While the impact of many laws and policies introduced during the former's reign are considered, their full impact was not always clear by March 2019. Similarly, there is no opportunity to assess the range of laws and policies introduced, changed, or repealed immediately before and after the transition between the two administrations;Footnote ²⁵ they are necessarily out of scope as well.

This points to a challenge inherent in any such work: the seemingly never-ending changes made to migration law, such that any attempt to assess the law runs the risk of being out of date immediately. Okafor's historical examination will nonetheless stand readers in good stead in two ways, even as the law necessarily evolves beyond its March 2019 position. First, the work narrates a history of migration law in both countries that points to a variety of factors that shaped the legal response to 9/11. Migrant rights in both states, he argues, can be seen as strongly security-relative—that is, dependent on or derived from national security imperatives—for many years prior to 9/11 (p. 6). Canadian solidarity, empathy, and a need for open borders all pushed toward greater restrictions. In the United States, interdependence and security anxiety pushed the law to become more restrictive, as did the facts of being directly attacked and the deeper political schism in the country. As a historical analysis of legal change, these insights will stand.

Second, it provides a model for empirical study of the law, and a reasoned argument for the need to do it. Assumptions about the legal significance of historically significant events often run the risk of conflation. Okafor's approach highlights the variety of sources of legal transformation, many of which are mundane or opportunistic changes rather than being caused by any single political or social catastrophe. These changes can manifest differently in closely connected states: causal in one, but not the other. It also illustrates the uncertainty of those shifts. Even where there is an identifiable overall arc to legal development, it often travels an uneven and unpredictable path.

In this light, the moves made by the Biden administration to undo the more restrictive and punitive legal and policy changes of the Trump administration will only ever be partial victories from the point of view of non-citizens. The excesses of 2017–2020 were singular in many ways, but also can be understood as sharpening rather than radically altering what came before. This is clearly Okafor's larger point: the assumption that 9/11 was transformative of refugee rights and protection in Canada and the United States rests on a faulty understanding of the pre-existing systems in both states, and how politicians of all stripes enabled the restrictions that characterize the current regimes. Okafor is thus careful to ensure that political affiliation does not preclude questioning, with Donald Trump criticized alongside Justin Trudeau and Barack Obama (pp. 43, 60). Implicit in this approach is a direction to study systems rather than statesmen. While 9/11 created the space for more restrictive and more punitive measures that gave more authority to states and their agents to deny protection to non-citizens, the ultimate takeaway is that refugee law post-9/11 remained largely as it was, “only more so” (p. 9).