Authored by Sarah Mikhail and Noreen Khimji, Canadian Immigration Lawyers, Smith Immigration Law
The devolving situation for American LGBTQ+ citizens, particularly transgender and non-binary individuals, remains a growing area of discussion for Canadian immigration practitioners. The 2024 U.S. election, and actions taken since, led to an unprecedented uptick in requests from Americans looking for pathways to migrate to Canada. Many immigration lawyers are proceeding with caution, however, given the numerous hurdles for these individuals, including the historic implications that come with both the Canadian parliament and the judiciary’s long-standing acceptance of the United States as a “safe country.”
A recent Federal Court of Canada decision examined the relevance of the change in country conditions in the United States in the context of a PRRA application. A stay of removal was granted for a non-binary citizen of the United States, pending judicial review of their refused PRRA application. In the case of Jenkel v. MCI, 2025 FC 1178, dated July 2nd, 2025, the Applicant argued that the PRRA Officer erred in solely referring to a 2024 country condition report for the United States, which pre-dated the Applicant’s concerns that the conditions for the trans and non-binary community had deteriorated following President Trump’s 2025 inauguration. Justice Blackhawk’s decision found that the Officer’s reliance on 2024 country condition documentation is unreasonable “given the public’s general awareness of the evolving situation in the US and the changing conditions for certain designated groups in the US”.
The Applicant argued that the PRRA Officer failed to assess the country conditions since President Trump took office, and failed to consider in their decision impacts on transgender and non-binary people. This included President Trump’s commitment within his inaugural address to make the official policy of the United States government “that there are only two genders, male and female”. Justice Blackhawk further noted that, the PRRA Officer “failed to consider recent evidence of the conditions that may have supported a reasonable fear of persecution.”
While the impacts of this decision remain limited – and our Canadian immigration system is seeing proposed changes and narrowing pathways for all immigrants – it marks an important recognition of the need to consider up-to-date dangers faced by LGBTQ+ individuals in their country of citizenship, including in the United States, and leaves the door open for further discussion of the treatment of marginalized communities under this new administration.
