10 Pieces of Advice Before Entering First Year

Half way through my second year of law school I drafted a list of 10 pieces of advice that I would give to anyone entering their first year.  I passed this list on to between 5-10 people, and everyone seemed to appreciate it.  After not having thought about the list for a few years someone who had heard of it recently asked me for it.  It took me a fair bit of time searching through old Facebook messages to locate the list, so I decided to publish it here so that if I was ever asked again I could easily find my recommendations.

Remarkably, while I have updated the rationale behind each suggestion, my recommendations for people entering first year law remain the same now as they did when I was a second year law student.

So here they are.

1) You Control How Intense Law School Is

First year law school is intense.  There are typically mandatory year long courses, most of which are graded almost exclusively on a final exam.  You will be surrounded by some of the smartest people that you have ever met and will (depending on the school) be graded on a curve against them.  There will be a flurry of electives that you can choose from and if you’ve gone abroad for school it could be difficult to not become fully immersed in the study of law.

However, law school is only as intense as you want it to be. You could spend thirty hours a week in the library or just use other people’s summaries. For every student spending their weekend reading dozens of cases there is another student probably doing just as well who is rock climbing having just read a ten sentence summary of each case.

I am not recommending one approach or the other.  All I am saying is that you have a choice.  You control how intense law school is.

2) Be Prepared for Class

Most law school classes are taught by incredibly engaged and smart individuals.  I cannot remember having had any bad professors at either the University of Toronto (where I graduated from), the University of British Columbia (where I did a letter of permission for a semester), or Central European University (where I did an exchange).

Assuming that you enjoy learning about the law, and you probably should question why you are in law school if you aren’t interested in the law (but that’s a separate topic about whether you should go to law school, not advice for your first year there), then you will enjoy your classes even more if you are prepared for them.

The importance of being prepared is not only to avoid looking foolish if your professor uses the socratic method.  You will get more out of class discussions if you know what is being discussed.

If you are not going to read a case before class, then you should at least read a summary of it.  At every law school that I went to senior students were always happy to pass along USBs with case summaries and notes from previous classes. I imagine that such information is now even available online.

3) Don’t Ask People What they Got on the LSAT

Never ask someone what score they got on the LSAT or what their mark was in a course.

I was never asked these questions at UofT.  When I did one semester for my third year of law at UBC I was asked a few times what my LSAT score was.  It was annoying.

4) Don’t Give Legal Advice…

As soon as you are in law school people are likely going to come to you for legal advice.  When I was in first year law school friends and family approached me with questions on topics ranging from basic criminal stuff, landlord issues, pre-nups, vehicle accidents and even on setting up tax minimization schemes.

At the time I did my best to provide whatever assistance I could, always with the caveat that I was only a law student and probably didn’t know what I was talking about.  Having now taken and taught legal ethics I now realize what a bad idea even this was.

Put simply, if you don’t understand how confidentiality works in joint representation scenarios for people who haven’t signed retainer agreements then you shouldn’t be giving legal advice.

5) … But Do Fight Injustice

Having said that, within a few weeks or months after starting first year law school you will also start to realize how ignorant many laypeople are of how the law, and how others (sometimes innocently) take advantage of this ignorance.

You will look start looking at agreements between people differently.  If you rent, or have friends who do, then you will likely be especially stunned with what some landlords attempt to get away with.

You may not be a lawyer yet. But that doesn’t mean that where you do know what you’re talking about and understand legal ethics that you should let yourself or others be taken advantage of.

The help that you give can be as simple as spotting an issue and referring someone to the appropriate person who can help.

6) First Year Exams

Don’t make any vacation plans for the last two weeks of March and first two weeks of April during your first year of law school. Those weeks may be the worst and most boring weeks of your life.

Having said that, many years later the only thing that I remember about first year exams was that I preferred the three hour exams to twenty-four hour ones, and that an impromptu dance party broke out in my residency quad while we were studying on a Saturday night. It didn’t impact my mark.

7) You’ll get a Job

The profession of law breeds career insecurity, much of it pushed down from the top.

First year law school comes with a bizarre obsession and pressure about getting a job.  Whether it is from your school or the big firms that dominate the private practice recruitment process, you will start feeling pressure to find summer job(s) and articles within the first few months of your first year.  I do not think that there is any other profession in the world that pushes such uncertainty and insecurity about getting a job to people almost immediately after they start an educational program.

When I first wrote this list of recommendations getting a job as a lawyer was admittedly easier then than it seems to be now. I am not going to pretend that everyone who graduates from law school will get a job in law as soon as they graduate.

At the same time, having seen how fulfilling the careers are for my former law school colleagues who either left the practice of law or never started in it, I believe more than ever that law students should not let the pressure to find articles plunge them into depression.

8) Determine the Kind of Person You Want to Be

You should determine early on what kind of person you want to be both in law school and after.

Are you willing to say “no” to something you really want to do in order to study for a few more hours? If you decide that you will put off doing what you like and missing important events while you are in law school, then you are laying the mental groundwork for doing the same thing during your career, and are setting yourself up for a solitary and lonely adulthood.

9) Keep an open mind

Some people go into law school knowing exactly what type of law they want to practice.

Others don’t have a clue.

Then there are people who thought they knew what area they wanted to work in without actually having a clue what the day to day practice of that area is like.

When I went to law school I thought I wanted to be a prosecutor.  Volunteering at a criminal defence clinic turned me off criminal law (although as an immigration lawyer I sometimes feel like I am practicing quasi-criminal law in a regulatory regime with far less procedural safeguards). At the start of second year law school I had no clue what I wanted to do. I then took a course on insolvency law. Then an advanced course. I even won the Insolvency Institute of Canada’s annual student writing competition and had a paper published in a law journal. By the time that I started articles I was sure that I was going to be an insolvency lawyer.  But then I did a tax evasion file. Boom. Now I knew what I really wanted to do.  Then the tax litigator that I was working for said that given my interests in certain files that I should consider immigration law.

And now I’m a partner at one of Vancouver’s largest immigration law firms. I have a blog and a podcast on the topic, and will soon be wrapping up a two year stint as the Chair of the Canadian Bar Association of British Columbia’s Immigration Section.

If you had told me when I started law school that this is what I would be doing I wouldn’t have believed you.

So if you’re unsure of what type of lawyer you want to be, don’t worry.  Most of those who say that they do probably will be as surprised as I was where their career took them.

10) Appreciate How Fortunate You are to be Studying Law

We live in a society where ignorance of the law is no excuse for breaking it.  Yet, there are not any real opportunities to study law unless you first complete an undergraduate degree and do very well on a standardized logic test.

For me the study of law was an exercise in unlearning alot of my previously held assumptions about the world.  My staunchly held but undeveloped opinions were replaced by a greater understanding of how complicated most issues are.

Concurrent with your textbook studies you will have the opportunity to participate in fascinating extracurricular programs. During my first year of law school I represented someone charged with domestic assault in criminal court, wrote briefs on behalf of injured workers seeking compensation, and facilitated legal workshops in high schools.

It still seems remarkable that I was able to do any of the things at the age of 22, just because I was in first year law.

 


Withdrawing and Reinstating IRB Proceedings

Sections 5 and 6 of the Immigration Division Rules, SOR/2002-229 state:

Withdrawing a Request by the Minister for an Admissibility Hearing

Abuse of process

5 (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process.

Withdrawal if no evidence has been accepted

(2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party.

Withdrawal if evidence has been accepted

(3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request.

Reinstating a Request by the Minister for an Admissibility Hearing

Application for reinstatement of withdrawn request

6 (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn.

Factors

(2) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

Application

The leading case on ss. 5 and 6 of the Immigration Division Rules is Canada (Minister of Citizenship and Immigration) v. Sheremetov, 2004 FCA 373.  There, the Federal Court of Appeal determined that the Immigration Division should not consider the merits of the government’s case when considering whether to accept a withdrawal of a request for an admissibility hearing where no substantive evidence has been accepted in the proceeding.  It is only upon reinstatement that the Immigration Division may consider whether the government’s conduct amounts to an abuse of process.


Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law.  He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises.  Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs.  The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it.  All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.

Topics

1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law?  Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

28:30 – What sort of flexibility is there amongst enforcement officers once they have found a misrepresentation to still not have someone removed?

34:45 – As a lawyer, if a client comes to you and says “I submitted an immigration application with fake stamps in my passport and I knew they were fake,” what would you recommend? Do they have a chance of staying in Canada?  And other issues representatives need to be aware of.

 


Borderlines Episode #14 – How to overcome systemic barriers in LGBTQ asylum claims, with Sharalyn Jordan

Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University.  She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.

In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims.  Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim.  How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect?  How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.

Topics

1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.

5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?

20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?

34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?

36:40 – What is the standard of persecution in the LGBT context?

44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?

53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.

Post Show Notes

After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues. Isesele v. Canada (Immigration, Refugees, and Citizenship) is a good example. There, the Federal Court set aside a decision in which the RPD determined that a bisexual woman could avoid persecution if she simply kept a “low profile.”


Establishing that Someone is a Refugee

Section 96 of Canada’s Immigration and Refugee Protection Act (the “IRPA) defines a refugee as being a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries.  A refugee also includes though who do not have a country of nationality, but who are outside of their country of former habitual residence, and, because of the same fear, are unwilling to return to that country.

Refugee law is very complicated, and components of it are the subject of numerous blog posts on this website.

In this post, I hope to cover some of the major jurisprudence involving the interpretation of IRPA s. 96.

Past Persecution vs. A Future Fear

It is important to understand that refugees need to have a forward looking fear of returning to their country of origin.  The existence of past persecution will not create a rebuttal presumption that someone have a reasonable objective or subjective fear of persecution.

In Fernandopulle v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, the Federal Court of Appeal explicitly held that a person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasons listed in section 96 of the IRPA and that proof of past persecution for one of the listed reasons may support a finding of fact that the claimant has a well-founded fear of persecution in the future, but it will not necessarily do so. If, for example, there is evidence that country conditions have changed since the persecution occurred, that evidence must be evaluated to determine whether the fear remains well founded.


Work Experience Under the FSWP and the CEC

Subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations set out the job duties that applicants must perform in order to meet the requirements of having experience in an eligible NOC.

Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”

In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Court allowed the appeal where an officer rejected an application because the applicant did not perform two of the eight main duties for NOC 6211.  The Court stated:

The officer was therefore required to determine if Ms. Benoit “performed a substantial number of the main duties.”  However, the officer’s decision as disclosed by the CAIPS notes is merely the following:  “Duties listed in job letter do not match duties in NOC description; ordering and scheduling is done by manager with PA’s assistance.”  “Ordering” and “scheduling” are no more than mere components of the main duties listed in NOC 6211.  Thus, it is not clear if the officer at any point turned his or her mind to the real question, which was whether – on the whole – the duties were a substantial match.[1]

Another case worth noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652.  There, an officer refused an application under NOC 6221 because the officer felt that NOC 6421 was more appropriate. The officer did this not withstanding that NOC 6221 contained the following example titles “technical support specialist”, “telecommunications sales representative”, and “telecommunications salesperson.”  Accordingly, the court noted that the Officer erred by failing to address the evidence before her that the Applicant’s responsibilities and work experience were described in terms of one of the example titles in the NOC 6221 category.


A44 Reports

Section 44 of the Immigration and Refugee Protection Act states:

Preparation of report

44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Conditions

(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

 


Suspending Citizenship Applications Due to Cessation Hearings

Until recently, the Government of Canada adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status:

  1. the person has voluntarily re-availed himself or herself of the protection of their country of nationality;
  2. the person has voluntarily reacquired their nationality;
  3. the person has acquired a new nationality and enjoys the protection of that new nationality; and
  4. the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada.

Several permanent residents with citizenship applications in processing have been affected by cessation applications.  In Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“) that they were out of line, and even called their approach “inhumane.”

Ultimately, however, the Federal Court of Appeal in 2017 determined that IRCC can indeed suspend the processing of citizenship applications while cessation proceedings are underway.

Continue reading “Suspending Citizenship Applications Due to Cessation Hearings”