Restructuring of the North American Processing Network (Continued)

Restructuring of North American Processing Network (Continued)

In a previous post, I wrote about how on May 29, 2012, Citizenship and Immigration Canada (“CIC”) restructured its North American Processing Network. The restructuring included the closure of immigration section of the Canadian consualte in Buffalo, as well as the realigninment of Work Permit and Study Permit functions of the Canadian consulates in New York, Los Angeles, Washington D.C., Detroit, and Seattle. For information on those changes, I encourage you to read that post.

On June 11, 2012, CIC released a further Operational Bulletin detailing additional changes to which consulates which process Temporary Resident Permit applications, Rehab applications, and Authorization to Return to Canada applications. .

Re-Configuring the U.S. Network (TRPs, Rehab, and ARC)

Effectively June 18, the Seattle, Detroit, and New York consulates will no longer be processing new TRP, Rehab, and ARC applications. Only the Los Angeles and Washington DC consulates will process new applications in these categories. Furthermore, applicants residing in the United States will not be able to choose which consulate to submit their application to. Applicants living in the United States east of the Mississippi River (including in Puerto Rico, Bermuda, and St. Pierre et Miqueldon) must apply to the Washington DC Consulate. Applicants residing in the United States living west of the Mississippi River must apply to the Los Angeles consulate.

The following table more clearly shows the breakdown of the new immigration duties of the US Consulates.

New York
Los Angeles
Washington D.C.
Detroit
Seattle

Visitor Visa

Verification of Entry

Returning Resident
Visitor Visa

Verification of Entry

Returning Resident

Visitor Visa

Verification of Entry

Returning Resident
Visitor Visa

Verification of Entry

Returning Resident

Study Permit (U.S.

Can I Enter Canada With a Criminal Conviction?

As published in the May Canadian Immigrant magazine:

In November 2011, the Auditor General of Canada Michael Ferguson released a report criticizing the Canadian government for having what he essentially described as a completely inadequate screening process for detecting people who pose a security risk to Canadians.

As one might expect, this did not go over too well with a Conservative government that spent much of the autumn session pushing a public safety agenda. It responded to the auditor general’s report by promising to comply with his recommendations, and stating that it had already begun to make significant investments to improve security screening. Previously, people with criminal convictions occasionally entered Canada undetected. Border officials would also often let them into Canada on a short-term basis without requiring much paperwork. Now, both of these scenarios are likely to become less common.

It is, therefore, important that people who have been convicted of a criminal offence determine in advance whether they will likely be prohibited from entering Canada.

Will you be inadmissible to Canada?

If a conviction exists, then it is necessary to determine whether the conviction’s equivalent offence in Canada would be a summary, hybrid or indictable offence under an act of Parliament. Then, one must determine when the individual’s sentence was completed, and whether the offence is one such that passage of time nullifies the inadmissibility.

Consequences for common offences

Here are immigration consequences for some of the more common offences that people have. In general, offences involving the operation of a motor vehicle while impaired by alcohol will render persons inadmissible to Canada for a period of 10 years following the completion of the sentence. The same is true for assault.

Trafficking cocaine,

Should People Who Lose Their Refugee Status Be Deported?

Much of the media attention towards Bill C-31 – the Protecting Canada’s Immigration System Act – has been focused on its shortening of the time periods for processing refugee claims and its removal of some appeal rights for refugee claimants that were supposed to be introduced under the Balanced Refugee Reform Act. This past week, members of the immigration bar raised concerns about another questionable change. In short, Bill C-31 will make it so that refugees who became permanent residents of Canada will lose their permanent residence status if their refugee status ceases.

Currently, the Immigration and Refugee Board may cease a person’s refugee status. Amongst other reasons, it may do so if the reasons for which the person sought refugee protection have ceased to exist, or if the person reavails himself to the protection of his country of origin. Until now, the cessation of refugee status did not result in the loss of permanent resident status. Accordingly, ceasing a refugee’s refugee status was rarely pursued where the refugee had become a permanent resident.

Bill C-31, however, changes this. It provides that when the IRB ceases a refugee’s refugee status, then the former refugee also loses his/her permanent resident status. Bill C-31 also provides that such an individual would be inadmissible toCanada. Through omission it also provides that there will be no appeal to the Immigration Appeal Division, meaning that humanitarian & compassionate grounds (such as hardship and establishment inCanada) cannot be considered in deciding whether to revoke the person’s permanent resident status.

This will apply to refugees who made their claims in Canadaand to those who were resettled to Canadafrom refugee camps from abroad. It would apply to refugees who recently obtained status, and to refugees who became permanent residents many,

Useful Rehabilitation Decision

It’s not often that you see a Federal Court decision specifically discussing whether an officer’s decision to reject an Application for Criminal Rehabilitation was reasonable. That’s why I read the just released decision in Hadad v. Canada (The Minister of Citizenship, Immigration, and Multiculturalism), 2011 FC 1503, with much interest.

The case affirmed several important principles of rehabilitation applications, including that:

The Minister should take into consideration the unique facts of each particular case and consider whether the overall situation warrants a finding that the individual has been rehabilitated.

That rehabilitation is forward looking.

That an officer commits a reviewable error if he/she attributes too much importance to the fact that an applicant has past criminal activity as opposed to the likelihood that the applicant would be involved in future or unlawful activity.

I have embedded in this post Justice O’Keef’s discussion of these principles.

New Inadmissibility Checklists for US Nationals

Canadian Missions in the United States have released several new checklists that are not found on the CIC main page.

Importantly, there is now a checklist for Temporary Resident Permit applications.

The checklists are:

Application for Rehabilitation Checklist

Application for Authorization to Return to Canada Checklist

Application for a Temporary Resident Permit Checklist

Immigration Consequences of the Omnibus Crime Bill

On December 5, the House of Commons passed Bill C-10, also known as the Safe Streets and Communities Act, or the Omnibus Crime Bill.

Bill C-10 can be found here:

Bill C-10 introduces numerous changes which will affect Canada’s immigration system:

Changes to Sentencing Provisions

The following table details changes to sentencing provisions which will impact admissibility to Canada.

Crime
Sentence
Immigration Consequence

Sexual Interference (touching an individual who is under the age of 16)
Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

If Crown proceeds by way of indictment mandatory minimum penalty of 1 year.
Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Invitation to Sexual Touching (for an individual who is under the age of 16)
Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

If Crown proceeds by way of indictment mandatory minimum penalty of 1 year.
Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Sexual Exploitation (of a young person)
Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

If Crown proceeds by way of indictment mandatory minimum penalty of 1 year.
Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Incest against a Minor
Remains a hybrid offense with a maximum term of imprisonment of not more than 14 years.

If the Crown proceeds by way of indictment there is a mandatory minimum sentence of 5 years.

Certified Question on Misrepresentation

I recently did a post about a Federal Court decision which suggests that there is an innocent mistake exception to misrepresentation. Not one week later, Justice Hughes of the Federal Court certifies the following question:

Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?

The Federal Court of Appeal’s answer to this certified question will likely clarify many aspects of s. 40 misrepresentation.

The facts giving rise to the question can briefly be summarized as follows: Mr. Osisanwo submitted a birth certificate stating that he was the child of Cladius and Modupe. Immigration officials were not satisfied with the birth certificate and required DNA testing. The testing concluded that while Modupe was Mr. Osisanwo’s mother, Cladius was not his father. Modupe stated that she did not know that Cladius was not the biological father, and this point as not challenged.

In discussing the jurisprudence on the matter, Justice Hughes quoted at length from the Federal Court’s decision in Singh v. Canada (Minister of Citizenship and Immigration), 2010 FC 378. There, the court stated that:

Given that the word “knowingly” does not appear in Section 40, it follows, the submission goes, that knowledge is not a prerequisite to a finding of misrepresenting or withholding material facts. Undoubtedly, the existence of a child is a material fact.

I do not find this comparison helpful. Section 127 is in the “General Offences” section of IRPA. A misrepresentation could lead to imprisonment for a term of up to five years.

Innocent Mistakes, Misunderstandings, and Misrepresentation

One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation.

Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law.

A significant issue that often arises is whether or not a misrepresentation has to be intentional. The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant doe not have to intend to misrepresent themselves: Chen v. Canada, 2005 FC 678. IRCC officers do, however, have to be satisfied that the person was subjectively aware of the information that they allegedly misrepresented, and that a party cannot be faulted for failing to impart information which is unknown to him/her: Jean-Jacques v. Canada, 2005 FC 104.

But what about where there is an innocent mistake or misunderstanding? If an officer is satisfied that an individual has innocently misrepresenting something, can the fact that the misrepresentation was innocently made be an exception to misrepresentation?

In Berlin v. Canada (2011), the Court explored in detail whether such an exception exists. There, an immigration officer determined that Mr. B had committed misrepresentation because Mr. B failed to declare his relationship as the adoptive father of two children from a previous marriage. When the immigration officer asked why he did not declare them, Mr. B indicated that he did not believe them to be dependants for the purpose of Canadian immigration purposes.

In analysing the issue of whether innocent mistake was an exception to misrepresentation,

R v. Topp, Fines, and Criminal Inadmissibility

An individual who is criminally inadmissible to Canada will be eligible to apply for rehabilitation after five years have passed since the individual completed his/her sentence. A sentence can include imprisonment, a fine, or probation.

Next to probation, the payment of a fine is a type of sentence that can significantly extend a person’s sentence for Canadian immigration purposes. The reason is because the payment of fines are often staggered over a period of time. This is especially the case in the United States, where, for example, I have seen fines of $2000 stretched over twenty $100 monthly payments.

The Supreme Court of Canada recently released a decision which makes me wonder whether there may be a potential argument that a fine imposed outside of Canada should not be counted for the purpose of determining eligibility to apply for rehabilitation if the inadmissible person can argue that he/she simply cannot pay it.

In R v. Topp, 2011 FC 43, the accused used his brokerage business to defraud Canada Customs of $4.7 million. The Crown sought a $4.7 million fine in addition to imprisonment. The trial judge sentenced the accused to imprisonment but declined to impose a fine because she was not satisfied as required by s. 734(2) of the Criminal Code that the accused was able to pay a fine.

Section 734(2) of Canada’s Criminal Code provides that:

Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

Plea Bargaining and Canadian Immigration

The test for determining whether an individual is inadmissible to Canada is closely inter-twined with the criminal justice system of every country that that person has lived in. The determining factor for whether an individual is inadmissible to Canada or not is whether the person was convicted. It is not what the sentence was.

Our immigration system’s emphasis on convictions over sentences bears little resemblance to how the criminal-justice system of most countries work. Most people who are charged with an offense are more concerned with what their sentence will be (“will I receive jail time?”) as opposed to whether they are convicted. Accordingly, plea-bargaining has become the hallmark of most states’ criminal-justice system. Individuals who probably would not be convicted of their serious original charge are more than willing to avoid the risk of being convicted by pleading guilty to a lighter offense in exchange for little to no sentence.

Unfortunately, this leads to the trend of there being a lot more people with criminal records out there then there otherwise would be if people did not succumb to plea-bargaining, and if prosecutors not able to so rely on bargain results. The Journal of Law, Economics and Policy recently published an article highlight this relationship between plea-bargaining and overcriminalization. The article is titled “Overcriminalization 2.0: The Symbiotic Relationship between Plea Bargaining and Overcriminalization”, and can be downloaded here.

Some key excerpts include:

There is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice.

(Citing the United States Supreme Court) This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects.