Fighting deportation from Canada and appealing a removal order for Serious Criminality (Section 36(1) of the Immigration and Refugee Protection Act)
One of the most stressful moment’s for any permanent resident or temporary resident in Canada is finding out that they have become inadmissible to Canada and are being deported from the country. Some have been residing in the country for well-over a decade, are fully established, and maintain little to no ties to their home country. While temporary residents typically have little recourse to fighting their inadmissibility other than at the Federal Court of Canada, permanent residents may have a chance to appeal at the Immigration Appeal Division of the Immigration and Refugee Board of Canada.
A permanent resident in Canada often begins this difficult journey when they are contacted by the Canada Border Services Agency through what is called a “Procedural Fairness Letter.” When this happens, the permanent resident is informed of a possible finding of inadmissibility and are offered an opportunity to respond to these allegations. This through what is called a “Section 44 Report.” A CBSA officer is virtually debating on whether or not they should write up the Section 44 Report and refer your matter to the Immigration Division of the Immigration and Refugee Board of Canada for an Admissibility Hearing. Depending on the reason a permanent resident is being found inadmissible to Canada, the Admissibility Hearing could be complex, or straight forward. If you are found inadmissible, the Board Member is then required to issue a removal order against you. If that removal order is issued, you may have the right to appeal to the Immigration Appeal Division.
As the law stands today in 2021, being found inadmissible to Canada for serious criminality pursuant to Section 36(1) of the Immigration and Refugee Protection Act does not always mean that you will be allowed to appeal the removal order issued the same day. Instead, as it stands today (November 2021) you can only appeal to the Immigration Appeal Division if the sentence you received for your criminal conviction, is less than a 6 month term of imprisonment. As outlined in section 63 of the Immigration and Refugee Protection Act:
No appeal for inadmissibility
64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).
The following are examples of sentences keep your right of appeal alive:
- Jail terms that is “6 months less a day”
- Jail terms that are for “179 days” or less
- Suspended sentences that are less than 6 months.
The following are examples of sentences that do not keep your right of appeal alive:
- Jail sentence equaling 6 months or more
If your right to appeal is kept alive, then you can use humanitarian & compassionate arguments to try and fight for an appeal of your removal order. The most common legal test used when evaluating humanitarian & compassionate arguments are known as the Ribic factors:
- the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation
- the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order.
- the length of time spent in Canada and the degree to which the appellant is established
- family in Canada and the dislocation to that family that deportation of the appellant would cause
- the support available for the appellant not only within the family but also within the community and
- the degree of hardship that would be caused to the appellant by his return to his country of nationality.
Sometimes, the Board Member might stay your removal order for a certain period as a way to test your sincerity towards maintaining a life away from criminality, instead of granting the appeal altogether.
It is vital that when you are criminally charged, or contemplating accepting a plea deal, that you are aware of the immigration consequences of a finding of guilt / conviction! [/vc_column_text][/vc_column][/vc_row]