Non-binary person's U.S. deportation paused due to risks faced by LGBTQ+ people
Angel Jenkel came to Canada in August 2022, but says they overstayed their six month visitor visa while taking care of their now fiancé who requires 24/7 care due to epilepsy.
Jenkel was scheduled to be returned to the U.S. on July 3, but raised the potential of irreparable harm and fear for safety if returned to the U.S. as rights and protections for trans and non-binary people are rolled back.
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Ipsos poll reveals Canada leads world in LGBTQ2S+ rights
A Federal Court decision says the immigration officer reviewing Jenkel's pre-removal risk assessment failed to consider recent developments in the U.S. and relied instead on information from January 2024 National Documentation Package which provided information on potential risks.
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Justice Julie Blackhawk says in her decision that the officer's approach was 'flawed and unreasonable' for not considering up-to-date risks for LGBTQ+ people in the U.S.
Jenkel can now stay in Canada until a judicial review of Blackhawk's decision is complete, and if the result is favourable for Jenkel then their application to stay in Canada will be reopened and reviewed by a different officer.
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Social Sharing When Angel Jenkel first came to Canada from the U.S. three years ago, the world was a different place. Their Canadian boyfriend, who they were visiting, was in good health. And back home, the U.S. was making progress on transgender rights under president Joe Biden. Now, their financé is ill and requires regular care. And back home, U.S. President Donald Trump is rapidly scaling back the rights of trans people, which could put Jenkel, who is non-binary, in the crosshairs. So Jenkel overstayed their visa. "It was just really stressful for me to think of going back to such an environment that was changing and escalating constantly," they told CBC. Jenkel was scheduled to be deported from Canada this month. 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The couple is now living in London, Ont., so he can be closer to the medical care he needs for his frequent seizures. Meanwhile, the political climate for transgender people in the U.S. has dramatically changed under Trump's second presidency. The Republican president has issued a series of executive orders declaring the U.S. will only recognize "two sexes, male and female," halting gender-affirming care for minors, restricting transgender women and girls from participating in sports, and banning transgender people from serving in the military. As Jenkel watched this unfold from afar, their loved ones in the U.S. warned them to stay in Canada. "What is weird is hearing my grandma telling me that she's scared for me to come back and, like, people that I would have, in the past, thought of as hardcore America-lovers," Jenkel said. "They are terrified of me coming back to the country." Deportation order 'failed to reflect the current reality' Jenkel was ordered to be deported on July 3 after an initial risk assessment determined they didn't face a credible threat in the U.S. But Justice Julie Blackhawk halted that deportation, pending review. In her ruling, she wrote Jenkel's risk assessment was "flawed and unreasonable." That's because the immigration officer conducting the review used outdated information — a government dossier on the United States that was last updated in January 2024, says Jenkel's lawyer. "It's a marked recognition that the conditions have deteriorated ... since the Biden administration has left office," Sarah Mikhail, of Smith Immigration Law in Toronto, told As It Happens host Nil Kӧksal. "These changes are significant enough that, when assessing trans and non-binary individuals' circumstances in Canada, this is something that needs to be taken into consideration." Devon Matthews, head of programs at Rainbow Railroad, hailed the ruling. The non-profit organization, which helps 2SLGBTQ+ refugees, stopped resettling people in the U.S. earlier this year. "We've seen firsthand the deteriorating conditions for LGBTQI+ people in the U.S., from the escalation of anti-trans legislation to targeted violence and growing legal uncertainty," Matthews said in an emailed statement. Rainbow Railroad is one of several organizations that asked the Canadian government to re-think how it assesses asylum seekers and immigrants who come to Canada from, or through, the U.S. It called on Canada to repeal or exempt 2SLGBTQ+ applicants from the Safe Third Country Act (STCA), which prevents refugees from claiming asylum in Canada if they come through the U.S. "This case could set an important precedent in acknowledging that countries traditionally seen as 'safe' cannot be treated as such without scrutiny, especially for marginalized communities," Matthews said. In an emailed statement, IRCC called the STCA an "important tool for our two countries to work together on the orderly management of asylum claims along our shared border." The STCA does not apply to U.S. citizens like Jenkel. What's next? Mikhail says she's hopeful Blackhawk's ruling will set a precedent, but cautioned that immigration claims are handled on a case-by-case basis. "At this point, we're not advising people to file for asylum claims, necessarily," she said. The ruling gives Jenkel a temporary reprieve pending a judicial review of their case, and carves out some time for them to apply for permanent residency, with their fiancé as a sponsor. They're hopeful they can get on the path to Canadian citizenship, but remain worried about their friends back home. "Things are actually getting scary," they said. "We thought we were seeing progress and now we're seeing all that progress wiped away."
