Capt. Mohammad Nasir Askarzada has an uncle in Montreal, the attorneys said, which should have made him exempt from a 10-year-old treaty under which he and the other officers apparently were turned away.
Refugee advocates say the case proves some of their worst fears about the 2004 Safe Third Country Agreement, which has dramatically decreased the flow of asylum seekers through the United States into Canada. They say the rules have been applied unevenly and have left some non-criminal claimants, like the Afghan officers, behind bars in the United States and facing life-or-death removal proceedings.
"The rules are so complicated that even lawyers have to keep themselves updated on the changes," said Askarzada's Canadian attorney, Razmeen Joya, who is seeking a re-opening of the 28-year-old soldier's case.
The Safe Third Country Agreement between the United States and Canada requires people seeking asylum at Canada-U.S. land border crossings to apply in whichever country they arrive in first, with some exceptions.
Askarzada, Joya said, met one of the exceptions by having a family member in Canada. But she said border agents failed to call the uncle to confirm the claim when he, along with Maj. Jan Mohammad Arash and Capt. Noorullah Aminyar, walked across the Rainbow Bridge from New York into Ontario on Sept. 22.
Canada Border Services Agency spokeswoman Esme Bailey said the agency does not comment on individual cases.
Askarzada, Arash and Aminyar were taken into custody by U.S officers and have been held in a federal detention facility outside Buffalo while challenging U.S. efforts to deport them for visa violations. If found removable, they are expected to seek asylum in the United States. The soldiers say they have been threatened by the Taliban for training and fighting alongside U.S. soldiers and fear they will be killed if returned to Afghanistan.
In the year before the Safe Third Country Agreement took effect, 6,073 people came through the United States to make asylum claims at Canadian land border points of entry, and 6,199 claims were made the year before that, according to the Canada Border Services Agency statistics. The number dropped to 2,563 in the first year of the Safe Third Country Agreement. Last year, there were 166 such claims.
The number of requests for asylum in the United States at northern border land entry points, meanwhile, has remained static at about 60 per year, according to the United Nations High Commissioner for Refugees.
Canadian officials called the Safe Third Country Agreement, part of post-Sept. 11, 2001 border security changes, "a pillar of strong Canada-U.S. co-operation on asylum claims."
"The objectives of the agreement are to enhance the orderly handling of refugee claims, and to act as a disincentive to asylum seekers making claims in both countries, or travelling through one country to make their claim in the country that the claimants perceive as more favourable to their claim," Remi Lariviere, a spokesman for Citizenship and Immigration Canada, said in an emailed statement.
But Janet Dench of the Canadian Council on Refugees said another result has been to push those desperate for asylum into the hands of human smugglers, who are paid to get claimants deep enough into Canada to make an inland application and avoid the chance to be turned away at the border.
"It provides business opportunities," Dench said, "for people who want to do that kind of work. That seems very perverse and unhelpful between the two countries."
Askarzada's attorney has submitted documents to Canadian authorities and is awaiting a response to her request that they reconsider his case. She is hoping to avoid a longer, more costly formal court appeal for the soldier, who hoped to bring his pregnant wife and daughter from Afghanistan to Canada as well.
But any action will have to wait until the United States case is resolved, she said. Askarzada is scheduled to stand trial on whether he is removable from the United States on Jan. 6. An immigration judge last month set bond at $25,000 for each of the three officers, but all remain in custody without the means to post it.