Another year is behind us; a New Year is on the horizon. This last year has been a significant one in terms of immigration developments, policy, and legislative enactments/changes. These immigration developments took place under the shadow cast by the Trump presidency. Perhaps Pierre Elliott Trudeau said it best in his Washington Press Club speech made on March 25, 1969, almost a half century ago:
"Living next to you is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt ... "
Almost 50 years ago, but little has changed.
The year started off with the Trump "Muslim ban" and I found myself in a flurry of media interviews given that the hastily rolled out and poorly implemented ban (with no notice to Canada, one of the United States’ largest trading partner). Initially it seemed to apply to Canadian dual nationals. Mere hours later it didn't and our own officials including our Minister of Citizenship and Immigration, Ahmed Hussen himself, a "hyphenated Canadian" (having been born in Somalia) had to scramble to make sense of it all.
My thoughts at the time?
“There’s a lot of sort of scapegoating or targeting of certain groups or immigrant groups or certain types of refugees. I want to make it very clear: immigrants as a whole commit less crimes than native-born populations in both Canada and the U.S.”
Sharma suggested the process of Syrian refugees coming into Canada and the U.S. to escape violence and persecution has been more transparent than the U.S. president’s own actions.
“They’ve been vetted more than Trump’s cabinet picks and that process has been more transparent than Trump himself. Trump hasn’t even released his tax returns.”
Sharma pointed to Trump’s predecessor as at least partially responsible for the ban.
“President Trump is a real estate developer; you might be able to give him some leeway in terms of superficial acts, but President Obama was a constitutional law prof. He’s the guy that opened up the Pandora’s Box to these executive orders that have run amok.
“It’s been a whirlwind 72 hours. And bear in mind, this is the first week of a Trump presidency. There’s three years and 51 weeks to go. ...
Scapegoating certain populations has real-life consequences and politicians in Canada should be careful in following Trumpian populist antics. I discussed the seeming rising anti-Islam sentiments on Alberta Primetime and hope that 2018 is a better year for our Muslim neighbours.
Even after setbacks in the courts, like a zombie movie, Trump's Muslim ban arose from the dead, and even now enjoys some semblance of life.
February started off on a positive front with my good friend Harjap Bhangal, a UK immigration lawyer and commentator, flying in to be the keynote speaker at the Punjabi Community Health Services annual gala. Our friend Andy Hayher, a partner at Vogel LLP, is on the board of this worthwhile endeavor and Harjap provided a great deal of insight as to the challenges that the Punjabi community has faced in the UK foreshadowing perhaps the challenges that the community will face here (there are also parallels between the nativist sentiment that drove "Brexit" and developments south of the border).
This spring I attended at an admissibility hearing for a client from Bangladesh and a member of the BNP; disturbingly it appears that Canadian immigration authorities view its members as inadmissible to Canada. Luckily, we were able to succeed; the minister's allegations that my client was inadmissible by virtue of his membership in the BNP were found not to be well founded. The BNP, at least in this case, was found not a prohibited organization involved in subversion of an elected government.
Also in spring, I gave a presentation for the Legal Education Society of Alberta "Immigration Fundamentals" along with other immigration practitioners both here in Calgary and in Edmonton. My presentation was on the consequences of criminality and these papers/presentations are available on the LESA website. I would encourage practitioners to utilize the excellent resources that LESA has at its disposal.Here are my notes for that presentation. The presentation was similar to my speech before the CBA local immigration subsection late in 2016 and a podcast of an interview discussing same with my colleague Mark Holthe of Lethbridge can be found here.
I was honoured to be asked to appear before the standing committee on citizenship and immigration regarding the regulation (or lack thereof?) of immigration consultants in May. My "evidence" is recorded here. The CIMM has issued its findings; the Minister of Citizenship and Immigration has apparently taken that under advisement and has not acted on those recommendations to date, perhaps delaying much needed reform on this front. My position was at odds with the CBA; I believe that there's room at the table for immigration consultants, however, I have deep reservations about allowing consultants (without more education/training) to practice as advocates before the Immigration and Refugee Board.
The annual CBA National Immigration Conference was held this year in Toronto and I was pleased to have been asked to speak at the conference. My paper and presentation was on misrepresentation (something that we deal with on a daily basis); this is a ground of inadmissibility which is widely defined and carries with it significant consequences. I have a video on that broad topic that can be viewed here.
In addition to many other cases that I've dealt with this year, July saw what appeared to be or perhaps another chapter in the saga of what seems to be a never-ending case where the Minister has attempted (without success) to vacate the refugee status of my client. This was the third time that my client had been called before the RPD. The first two hearings resulted in two separate federal court applications (both successful); and while we have now succeeded it appears that the Minister will seek judicial review against this decision.
This year also saw significant travel; after an IAD hearing in Winnipeg, I boarded a plane destined, of all places for Springfield, Missouri where I provided expert testimony in a court case regarding the Canadian immigration system and in particular, the sharing of information between the US and Canada. I appreciated the opportunity to understand what it feels like, in a formal setting, to answer questions instead of ask them. If nothing else, I now understand the stress and pressure that my clients must feel when they are questioned in court or court-like environments.
As with every year, there were allegations of immigration fraud; no surprise given the advantages status in Canada confers.
With Trumpian pressure on those without status, or those living with precarious status as well as our Prime Minister's welcoming tweet, Canada saw thousands cross the border to claim refugee status here. This has resulted in incredible strain on our refugee determination system. Other Americans seek to escape Trump's America, but it's not so easy, as I explained in a Vice Interview entitled "10 Questions Americans Want to Ask a Canadian Immigration Lawyer". My initial position was to "keep calm and carry on" however, there are serious grounds for concern.
I discussed the refugee backlog that has resulted on several occasions, including this interview with Danielle Smith of AM770.
With this dramatic increase in "irregular" immigration, Canadians for good reason-had questions as to how the Safe Third Country Agreement worked. I explained it here.
It somewhat difficult to get in the Federal Court this year as many of my applications for leaving judicial review were consented to by counsel for the Department of Justice. Nonetheless, in November, it was my pleasure to appear as counsel before the newest appointee to that august body, Justice Ahmed. Also, in that same month the Federal Court was temporarily moved to the University of Calgary and I appeared as counsel or represented the applicant, Ranbir Singh Sidhu, before some 50 law students and the Dean. It was in relation to this case that I had the opportunity to cross-examine an overseas immigration officer.
In terms of legislative developments I would think that the change to Canada's citizenship law is one of the most significant. My video overview of the citizenship law changes can be viewed here.
The reset button has been pressed in terms of the Harper government's "strengthening Canadian citizenship" legislation which ironically made citizenship harder to get and easier to lose. We are now back to three years of (physical) residency in Canada; some consideration of pre-PR time and an end to a tiered citizenship that is an end to the revocation of citizenship (other than fraud).
In terms of jurisprudence, it has to be the Tran case. My friend Peter Edelmann was counsel and fought this case all the way to the Supreme Court of Canada which ultimately found that conditional sentences were not equivalent to incarceral terms thus allowing permanent residents that have been convicted and sentenced to conditional sentences to access the immigration appeal division and seek to remain on humanitarian and compassionate grounds (notwithstanding criminal inadmissibility). You can learn more about Peter in a podcast interview here.
Time will tell as to the government's stated plan to bring in more than a million immigrants over the next three years. This plan can be rendered moot or otherwise made irrelevant with the immigration policy changes by the United States. A change in US policy towards Haitians ending their TPS has already resulted in thousands crossing the border and making refugee claims. This unexpected deluge has strained our refugee determination system. There are tens of thousands if not more individuals living with precarious status in the US they could follow in the footsteps of those that entered Canada this summer.
Man plans and God laughs. I’m looking forward to 2018.