All posts by Will

Law Student Legal Advice Program – Assistance for Low-Income Immigration/Refugee/Citizenship Applicants

Many of you may already know or have recently heard that I found a new home for providing legal services and mentorship. I am humbled to join a list of my respected professional mentors such as Tim Bailey (currently at the Law Foundation of BC) and Sarah Marsden (current Clinic Director/Professor at Thompson Rivers University Law) in becoming a part-time Supervising Immigration Lawyer here at the Law Student Legal Advice Program (“LSLAP”), a non-profit legal clinic which operates through UBC’s Allard Law School.

I work alongside incredible practitioners Chris Heslinga (Supervising Civil Lawyer) and Andrew Bonfield (Criminal Law) and am able to come UBC/Allard once a week to meet with students and prepare resources/strategies to assist more low-income and vulnerable clients. I try and stretch the five hours I have where I can 🙂

LSLAP offers summary legal advice and representation for low-income clients in a variety of legal areas (see: https://www.lslap.bc.ca/). There are income thresholds which those that operate phones and run summary advice clinics will screen for.

Specific to immigration, I supervise law student clinicians who are taking on cases ranging from refugee files to temporary residence, permanent residence, enforcement, appeals, and citizenship matters. We don’t currently do judicial reviews but I am working on some resources that may help self-represented litigants in this regard.

The benefit of LSLAP  is that our clinicians can take on cases that other agencies may not be able to. We take on a lot of student matters, assist on temporary work issues, and in particular specialize in some of the roadmapping that help low-income individuals avoid legal problems that could come at high costs. Another area where we do a lot of work is with humanitarian and compassionate grounds applications and those requiring relief on temporary policies. I suspect that with increased emphasis on enforcement, we will also be assisting more individuals with guiding them on restoration.

We also rely heavily on a strong referral network to ensure our clients are matched up with other legal service providers and are aware of their ability to apply for legal aid, or to seek representation in complex refugee matters.

I personally review every immigration matter that goes out the door to make sure the advice is accurate and that we’re providing timely assistance (although with students, we may not be able to step in on emergencies – stays, pending removals, etc!)

Other practitioners may also find some benefit in the manuals LSLAP produces. See the Immigration and Refugee Law Manual here and the Citizenship manual here.

In short, this short blog is to let you all know about this resource for your clients and get in touch with me at immigration.sl@lslap.bc.ca if you would like to refer a client directly. You can also call the switch board at the info below:

​Please call (604) 822-5791 to schedule an appointment.
Please call (604) 684-1628 to set up a Chinese language appointment at our Chinatown clinic.
如果你需要中文服務的話,請撥打(604) 684-1628 將會有人幫您預約時間.

Please note that LSLAP cannot give legal advice over the telephone. Also, please remember to bring a piece of ID. 
Our office hours are Monday to Friday from 10AM – 4PM. We are closed on all public holidays.​

​See you and your clients soon!

Guest Post: Randall Cohn on Volunteering for the Dilley Pro Bono Project for Detained Migrant Women/Children in South Texas

As many of you know, Vancouver Immigration Blog likes to highlight the experiences and perspectives of other migrants and migrant-supporting organizations/individuals. Today’s guest post, is a piece from Randall Cohn, a colleague of mine who I have a great deal of respect for. He recently came from a week working the front lines in Dilley, Texas at the South Texas Family Residential Center where he assisted in providing services to women and children in immigration detention. He shares a harrowing read and asks those who are interested in helping to contact him to get involved – please email him: randall@edelmann.ca

I spent the last week in Dilley, TX, volunteering for the Dilley Pro Bono Project, which provides legal services to the women and children currently in immigration detention at the South Texas Family Residential Center.

Here are some reflections from my experience:

1) I volunteered for this project once before, in the summer of 2015. Following a steep rise in the number of asylum-seekers from Central America, and under pressure to show that they were protecting the border after expanding the DACA program, the Obama administration had recently implemented a policy of detaining families seeking asylum until they could be fully screened for admissibility concerns and complete a ‘credible fear interview’, which is the first-level administrative process in which an ‘asylum officer’ working for USCIS determined whether they had a prima facie claim. The major controversy at the time had to with the length of detention before claimants got their interviews, and the conditions at the facility (and at the CBP processing centers where they spent a few days prior to being transferred to Dilley) that many perceived to be designed to create a disincentive to seeking asylum in the US. Significantly, however — and I liked to think, in part because of the counsel that the detainees received from the volunteer lawyers — more than 90% of the detainees ultimately passed their interviews, and were released with a temporary protection from deportation that would allow them to apply for permission to work and build lives in the US while they waited for the opportunity to have their claims substantively evaluated in immigration court.

During the last few years, as public awareness of family detention increased and people directed their anger at the Trump administration’s cruelty, I have made occasional attempts to remind people that family detention began under Obama’s watch. I remembered the outrage that I felt in 2015 while I listened to these amazing and courageous women describe the reasons they fled Honduras, El Salvador, and Guatemala, as they clutched their young children, almost all of whom were sick from the days they had spent in the uncomfortably cold processing rooms known among claimants and their advocates as ‘hieleras’ (iceboxes). It seemed important to remind people that both cruel treatment of refugee families at the southern border and US culpability for the refugee crisis itself are rooted in US policies that preceded Trump, and have had more or less unbroken continuity between Democratic and Republican administrations for at least 40 years.

I expected that things would be worse this time around — that the whole situation would be more institutionalized, that the stories about treatment by CBP and ICE would be more offensive, and that the detainees’ prospects for eventual release would be reduced.

I was, however, not prepared for just how much worse things have gotten.

2) After months of litigation that led to contradictory opinions in different federal jurisdictions, and a toggling on and off of injunctions, USCIS is now fully implementing Trump’s ‘safe third country’ policy (not to be confused by my Canadian comrades with the controversial safe third country agreement between the US and Canada — there is no irregular entry loophole in this version). Under that policy, applicants are not eligible for asylum under the standards set out in the 1951 UN Convention on Refugees unless they first sought and were denied protection in at least one country that they passed through on their way to the United States. For most, that means that they would have first had to apply for asylum in Mexico, where refugees are routinely targeted for kidnapping and extortion. Both of the women I worked closely with this week talked casually about being kidnapped on their way to the US border and paying ransom as though this was just an expected leg on their itinerary.

Because most families fleeing from Central America do not believe that they will be safe in Mexico, this means that almost every person seeking asylum at the southern border from any country other than Mexico itself is barred, at the outset, from refugee protection under the convention. Instead, they must either seek asylum under the 1984 UN Convention Against Torture, which has much narrower requirements, or receive a ‘withholding of removal’ under a statute that restricts the US from refoulement (or returning people to places where they are at risk of harm) where it is ‘more likely than not’ that they will be persecuted for the reasons established in the 1951 refugee convention. In essence, this amounts to what lawyers call a ‘burden shift’. Instead of presuming that people are telling the truth and erring on the side of avoiding refoulement where there is a reasonable possibility that a person would face danger if returned to their home country (i.e. does their claim qualify on a prima facie basis), the US government is now requiring that asylum-seekers convince asylum officers that the danger constitutes a 51% or greater chance of persecution.

How is such a chance measured? What is the methodology? What counts as evidence of risk? Are there considerations for the obvious obstacles to people having such evidence, even if it exists, with them when they cross the border? Nobody knows. But the effect is that, just in the last few weeks, the success rate for credible fear interviews has plummeted from 90+% to less than half. To be clear: that means that the US is now, as a matter of policy, sending more than half of the women and children who have fled, at great peril and expense, from violence in Central American countries that is, arguably, the direct result of persistent US intervention in those countries’ domestic affairs, back to where they came from, and where many of them are very likely (say, 49% likely) to be abused, raped, tortured, trafficked, and/or killed.

3) One of the women with whom I spent the most time this last week is from Honduras, where she was raped and abused by both her domestic partner and his brother (who works for a local cartel), and held captive and forced to work as a domestic servant. When things started to get worse and she began to fear for the safety of her young daughter, she took her daughter and headed north.

When she arrived at the US border, she and her daughter — like almost all asylum-seekers — were held for several days in the hielara for processing. When she was having her fingerprints taken, the CBP agent told her that the US had just passed a policy ending asylum, that she would be returned to Honduras, and that they were just taking her fingerprints for records to make sure they could identify her if she ever tried to come back. He pointed to a group of women being led out of the processing center and said “Do you see that group there? That’s the last group who will ever be allowed into the US. You just missed it.” When they were transferred to Dilley, she thought she was being taken to the airport. She was scheduled for a credible fear interview only days after arriving, and was not able to meet with a lawyer before she found herself answering a series of aggressive questions about her experiences in Honduras, believing the whole time that the decision to send her back had already been made. She chose not to provide key details of her story — which she had never shared with anyone, and about which she was deeply ashamed — and she was quickly found ineligible.

My amazing interpreter Zoe and I spent most of two days with her after she got that decision, during which we finally explained the process to her and she realized what had happened. We took a detailed statement from her that described both her actual situation in Honduras and the reasons that she did not tell the whole story at her interview, which will be submitted to the immigration court along with a request for reconsideration of her decision. Even if the judge recognizes the cruelty of her treatment by CBP and accepts that as a basis for the contradictions between her new statement and what she told the asylum officer, the most likely outcome is that, because she did not apply for asylum in Mexico and has no documentary proof of her circumstances in Honduras, she will be sent back there within a couple of weeks.

No single part of this woman’s story is in any way unusual.

4) There are currently approximately 1700 people in detention in Dilley, composed entirely of women and their children. Many of them are heartbreakingly young — the women themselves are in their late teens and early 20s, and their children are infants and toddlers. There is a day care and a school on site where the kids can go during the day, but kids between 2 and 4 years old seem to be in a gap of services, where the mothers are most likely to bring their kids with them to the visitation trailer where legal services are provided. There is a small room in the trailer, its walls covered with colorful posters about personal hygiene, where Disney movies play, sometimes dubbed in Spanish, on a big screen. The kids frequently come wondering out, tears welling up, looking for their mothers.

Volunteers and employees of the Dilley Pro-Bono Project sign agreements, before being allowed into the detention center, that — among other things — they will not hug or otherwise comfort the children. If they are inconsolable, volunteers are allowed to lead them by one hand to go find their moms. I have been told that people who have violated this agreement have been permanently barred from the center.

Obviously, this was very hard for me. Much harder than it was in 2015, before the birth of my own son, whom I feel certain I would do absolutely anything necessary to protect from harm. Every single woman in detention in Dilley, TX feels that as deeply as I do. That’s why they are there.

5) The Dilley Pro-Bono Project is unbelievable. Every single week, a new group of lawyers, interpreters, mental health workers, and legal volunteers arrive in Dilley to staff the project, guided by a small on-the-ground staff who live in Dilley, and work 6 and 7 day weeks full of 14 hour days. In addition to training, supervising, and managing a new group every week, they coordinate with off-site pro bono counsel to bring litigation on behalf of the Dilley residents that has been and will continue to be directly responsible for slowing the Trump administration’s rollout of its cruelest and most obviously illegal policy directives.

When I volunteered in 2015, I left thinking that I had never seen as impressive an example of what effectively organized direct action can do. It remains so, but on a much larger scale, and with much higher stakes. There is no time or space for any bullshit, and everyone knows it. Everyone works incredibly hard. It’s a logistical nightmare full of constant crises and adjustments, and everyone just adapts. It’s a ridiculous model, but nobody can think of anything better, and the crisis isn’t going away, so it just keeps on going.

Those of you who know me well know that I am ambivalent about just about everything I do, but I am not ambivalent about this. In the midst of a historical disaster, this project is a model of determination, humility, mutual-aid, and resilience. If anyone reading this has even the slightest urge to join this project, please do it. Or send them money, or send money to support someone who is trying to go (thank you to those who supported me). Talk to me if you want my help making it happen.

Solidarity and love.

 

 

 

What are Personal Information Banks (PIBs) and Why Aren’t More People Talking About Them

A portion of this article is a modified summary of a presentation done in October 2019 where my colleague Karen Jantzen (Law Student, Allard Law School at UBC) and I  presented on ‘Privigration’.  Those that are interested are recommended to purchase the webinar. We’re still looking into this area of the law and refining as we go!

Personal information banks (PIBs) describe the personal information that a government institution controls and uses for administrative purposes in a program or activity. The description includes the procedure for collection, use, disclosure, and retention or disposal of the personal information. They can also provide specific instructions for individuals requesting information stored in the bank.

Personal Information Banks or PIBs are the central go-between/foreground in an area of law I have called ‘Privigration‘ – where Privacy and Immigration Law meet.

In our information-sharing/AI generation, personal information becomes the central currency. The Office of the Privacy Commissioner (“”OPC”), as it stands, does not offer much by way of enforcement or remedy. Short of Privacy Commissioner investigations that can only report on wrongdoing but not institute wrist slaps, it is Government themselves (and their various agencies) that must regulate how they share information between each other in a manner that is consistent with the Privacy Act (see s.35 here). Meanwhile, legislative purposes (see various Regulatory Impact Analysis Statement(s)) and wording of legal provisions are providing even more expanded purposes to facilitate the sharing of private information of applicants without the need for consent or where individuals may not be aware of their prior consent.

It is important to start this multi-blog conversation by looking at Personal Information banks as the central vehicle by which information goes from one government body to another. With these different government bodies having information sharing agreements with other country, not only is this inside Canada but outside to other Government bodies.

What is Personal Information?

Personal information is defined by the Office of the Privacy Commissioner of Canada as “data about an ‘identifiable individual.’ It is information that on its own or combined with other pieces of data, can identify you as an individual.” It can be recorded in any form, and includes information about race, ethnic origin, religion, marital status, age, education, medical, employment, criminal history, financial transactions in which the individual was involved, identifying number or symbol assigned to the person, address, fingerprints, blood type, personal opinions or views of the individual, or of someone else about the individual, confidential correspondence with the government. Excludes info about the work of government employee or contracted worker, as well as someone who has been dead for 20 years.

Fundamental premise or values and principles is that PI shall not be shared with third parties without the consent of individuals to whom the information relates. This is because the sharing of personal information by government agencies with third parties could infringe on the personal rights, freedoms and liberties that exist in Canada today. However, there are a number of exemptions that allow government agencies to use personal information, without the individual’s consent, in order to efficiently administer programs, enforce the law, act to protect the safety of Canada and contribute to international peace and good order

Differing Definitions of PIBs

CBSA defines Personal Information Banks (PIBs) as:

Standard personal information banks: these are descriptions of personal information contained in records, and collected and used to support internal services.

It is to be noted that there is a hyperlink to the more comprehensive Treasury Board link below.

IRCC provides a little more detail but without a link to the standard personal information banks:

Personal information banks (PIBs) are descriptions of personal information under the control of a government institution that is organized and retrievable by an individual’s name or by a number, symbol or other element that identifies that individual. The personal information described in a PIB has been used, is being used or is available for an administrative purpose. The PIB describes how personal information is collected, used, disclosed, retained and/or disposed of in the administration of a government institution’s program or activity.

The Treasury Board of Canada provides the most comprehensive definition. Before we discuss this definition, we should look a bit into the Treasury Board of Canada.

The Treasury Board of Canada advises and makes recommendations on how government money is spent on programs and services. In its commitment to open government, to ensure tax dollars are spent effectively, it promotes transparency and accountability. The Treasury Board of Canada Secretariat (TBS) is responsible for preparing policy instruments, such as directives and guidelines, relating to the operation of the Privacy Act and the Access to Information Act. The TBS is tasked with publishing updates in Info Source, interpreting policy, advising on updates, regularly conducting policy evaluations, and monitoring compliance. The President of the Treasury Board is responsible for overseeing the government-wide administration of the Access to Information Act.

The Treasury Board defines “Standard personal information banks” as follows:

Standard personal information banks

Personal information banks (PIBs) are descriptions of personal information under the control of a government institution that is organized and retrievable by an individual’s name or by a number, symbol or other element that identifies that individual. The personal information described in a PIB has been used, is being used or is available for an administrative purpose. The PIB describes how personal information is collected, used, disclosed, retained and/or disposed of in the administration of a government institution’s program or activity.

There are three types of PIBs: central, institution-specific and standard. The following descriptions are standard PIBs. They describes information about members of the public as well as current and former federal employees contained in records created, collected and maintained by most government institutions in support of common internal services. These include personal information relating to human resources management, travel, corporate communications and other administrative services. Standard PIBs are created by the Treasury Board of Canada Secretariat.

Looking as Specific Personal Information Banks

We get a window on to the information sharing by examining various published personal information banks where this information is stored.

IRCC’s public list of personal information bank is probably the best starting point as it is laid out in a very navigable format.

An example, and of the ones I looked at the example with the most amount of shared banks with other institutions, is for In-Canada Asylum where PPU 009 is shared with the following Government bodies through the corresponding PPUs. Again, this gives credence to our theory that privacy concerns may be heightened among certain groups.

Now looking at a longer CBSA PIB on their removals program you will see information sharing under the IRPA, with CSIS, RCMP, DOJ, IRCC, Employment and Social Development Canada, IRB, Global Affairs Canada, and Health Canada. See below:

Privacy Notices and Inaccuracies

Within the immigration context, information is shared via personal information banks via the Privacy Notice

The 2017 Internal Audit of the Management of Personal Information highlighted inconsistencies between the privacy notice statements on various applications forms and the Personal Information Bank information. This appears to be an ongoing problem.

For example, IMM 5669, which is the Schedule A used for most applications, lists 3 specific personal information banks on the disclosure statement. However, 2 of those correspond to existing banks, but reflect the incorrect title for those. The third listed bank does not exist. IMM 5409, the Statutory Declaration of Common-Law Union lists in the disclosure statement 3 incorrectly named banks and 2 non-existent banks. IMM 5444, the Application for a Permanent Resident Card, lists a bank that doesn’t exist.

This also runs against 5(2) of the Privacy Act if the disclosure statements are not consistent and/or not complete when comparing it to the PIBs.

What I would suggest is that IRCC create a resource that more explicitly, clearly, and accurately confirms which forms provide information that can populate which personal information banks and what the implications of this may be. As it stands, these fine-print waivers are not serving their purposes and creating consequences unbeknownst to client and representative alike.

Retention

Each of the different PIBS list their own schedules for retaining and disposing of the information they contain.

For example, personal information that appears in the economic resident PIB has several retention schedules. Express Entry profile information is kept for 5 years. For applicants who are approved as permanent residents, the information is saved for 65 years. For inadmissible individuals, the timeline for retention is 5 years. Biometrics are saved as per the the next slide.

The CBSA will retain the personal information contained through the entry/exit traveller processing PIB for 15 years, unless there is still an ongoing investigation.

In the IRB’s Refugee Protection Division’s Records bank states that the standard paper-based case file or electronic record is maintained in the regional office for six months after the final action is taken. It is then transferred to Library and Archives Canada where it is retained for a further ten years after which it is destroyed. Cases that have archival or historical significance are retained for 50 years.

Shortcomings of PIBs?

When individuals are submitting documents, there might be information that is disclosed that doesn’t fit in the administrative purpose of the existing banks. For example, in sponsorship agreements, many applicants submit additional documents, such as joint personal banking statements that may not be related to the proof. What happens when info doesn’t fall in? That information is supposed to be destroyed by the government.

However, there is no formal guidance on how program officers should handle the additional documentation provided by applicants. As such, officers use their discretion and, in the majority of cases, officers decide to keep the information on file as additional support for their decision rather than destroy it. As a result, IRCC maintains information that has no retention and disposition schedule and that should not be maintained in accordance with the program’s PIB.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/reports-statistics/audits/management-personal-information.html

Fixing Your Personal Information

Part of the Privacy Act requirements include being able to correct personal information that is held by the Government about you.

You do so through the following link: https://www.tbs-sct.gc.ca/tbsf-fsct/350-11-eng.asp

IRCC did not initially have this information available on their website but kindly clarified that they have the same process which utilizes the same forms.

What Should We Do With this Information About PIBs.

This may seem overly cliche, but before I can draw some larger recommendations I need to know more and learn more as to what happens behind the curtain. I think it is not enough for Applicants to know that their information is being stored but they need to know what purposes it is being stored for and what cross-implications these can have. Doing so in a transparent way can also have the added benefit of deterring wrongdoing. Applicants who are aware that information sharing via personal information banks or otherwise through Memorandum of Understandings (MOUs), legislative provisions, or inter-governmental agreements would be more likely to pause before rushing through an immigration form or engaging professionals to do different aspects without coordinating (the Tax Accountant vs. the Immigration Rep is a classic example).

I think the current treasure hunt that is piecing together PIBs and tracing the information sharing should be replaced with greater education and greater assurances that this information will be protected.

In 2015, along with my colleague Krisha Dhaliwal and Jason Shabestari, we wrote a piece called “It May Be Too Late to Repent: Immigration, Tax, and Privacy Concerns in the Context of New Proposed Changes to Social Insurance (SIN) Number Sharing”, Canada’s Immigration and Citizenship Bulletin (June 2015) after SIN-Sharing was introduced to IRCC.

Just recently, we’re seeing some of these concerns come to fruition to Canadians who have been victims of SIN fraud. See: Cornwall, Ont., woman loses life savings to terrifying ‘SIN scam’

The consequence of ‘not knowing’ or ‘not being able to confirm’ where privacy breaches have occurred and what usage/sharing/collection of personal information is justified is a greater likelihood of privacy breaches, of the sort that IRCC is not immune too [see: Privacy Act, Access to Information Act, Annual Report 2017-2018 (PDF, 1 MB) which documents 7 material breaches which occurred between 2017-2018].

In this age of data mining, information sharing, and the use of information for artificial and other intelligence, IRCC must ensure that immigrants, by virtue of their status and their interactions with Government, are not left in the dark on issues of privacy rights and protection of their personal information.

 

 

Her Steps – A Poem

The structured systems that serve to silence our sisters in their seven point five and subsume them with stress in their remaining seven.

Is this our so-called societal success? She spends, no suffers, another sleepless night spent sobbing for six hours in straight darkness and solitude.

I see you tell her to smile more, see the sun, see past the shade. To be more serene, put away that sass – but only some of the time so she still entertains your senses.

“You have to be situational – be more strategic – be selfish – slow down – but don’t forget to call out the sexism!”

Self-rationalization becomes overly-simplified through surface level schemes from bullshit self-help gurus who have nothing at stake.

To the point where actual solution-finding becomes entirely suspect and sloppy like the sauce in an alphabet spaghetti – trying to find an I and a C and a U.

But here’s a suggestion – maybe you could share that your soul struggles too and tell her she ain’t flying solo from here on in.

Maybe you could also just shut up and listen to her saga for a second without subverting her narratives in what you want to see and hear.

You ain’t her savior, Prince you the Problem. Stop trynna sanctify the situation and show up to be in support.

They are her steps.

A Reflection on My FACLBC Speech – Where It Came From and Where I’m Going

Reflecting on My FACLBC Intro Speech – Two Days Later

I am writing two days after delivering a speech at the FACLBC Gala that raised some questions and controversy. I have heard feedback from a few individuals (Asian lawyers that I respect) that I came off a little ‘inflammatory’ and ‘strong.’ I have also heard from others that I ‘spoke my truth’ and ‘said what needed to be said.’ I have taken all this feedback in stride.

In this piece, I wanted to provide both a contextual background but also give you an insight into my recent journey. One key thing, as my mentor Kevin Huang (E.D. Hua Foundation) has continuously reminded me is that we’re all in different stages. I by no means wish to write this a way to impose my views onto others. At the same time, I had a truth, one that Tina and I had shared – and a story I will tell below of how we got there. I am aware that this may vary from processes others are going through in finding meaning and understanding in their work. We may all end up in different spaces and places – and being Asian does not mean we are all one and the same.

Some will be stuck in feelings of survival while others will reap benefits from the current system that will boost our individuality, award/reward us, and lay foundations for happy families that grow up in different financial/social circumstances. It is isn’t my place to tell you that you should or shouldn’t aim for that. Indeed, my past few years has been a direct struggle in trying to question the own path I was on, discussing these issues with family, and finding allyship within community.

Indeed, I feel more uncomfortable now in my legal work than I ever have as a result of this process of think through it.

The Speech and the Inspiration Behind It

Tina and I decided to step up to do this talk on Gabriola Island where we both attended a week-long workshop called Conscious Use of Power (https://www.inneractivist.com/conscious_use_of_power).  We had both found out that we were appointed to the Awards committee and after a week of learning about our identities as both agents of oppression and targets of marginalization, decided this would be one way we could contribute. Tina and I had written a piece together in The Advocate trying to examine the challenges of being racialized lawyers and dissecting the intersecting marginalization and untold challenges we find ourselves subject to.

We were both reflecting on a series of challenges we were having/had in trying to advocate for social justice issues as Asian lawyers. We also thought that maybe acknowledging the fact that in many ways Asian lawyers have become privileged by the system and thus should do more to help address social justice issues might serve some good. We were fresh off conversations with Black women, Muslim women, and other individuals who called us in to do more in our respective fields.

Personally speaking, I had also gone through a lot of change. For those that know I made a major change in the spring of 2018, leaving a Firm that was more focused on the business of law and primarily served high net worth clients and corporations. I also saw myself head towards a toxic masculinity and relationship with power and money.

Transitioning into a progressive Firm (where I currently am at) has been hard on the mind and the soul. I have had to unlearn and rethink many things. I have also had to struggle with engaging in conflict, realizing the double-edged sword that is “stepping into my client’s shoes” in these new (more difficult settings), and the realization that progressive spaces can often be less coloured than corporate spaces. I have struggled with trying to understand the meaning behind pursuing these administrative tasks of law – researching the background and thought processes of mostly white judges, learning how technical rules work, and trying to understand administrative law functions/principles. At the same time, I’ve decided to invest more time into community where I am able to consult, volunteer, speak, and assist – but still not feeling I’m doing enough utilizing my role as a lawyer. Recently, I’ve spent my spare time reading critical race theorists, memoirs from racialized writers, trying to learn more about Indigenous communities that I had too often ignored both in my legal studies and in my lived reality.

Ultimately, I have questioned the very root of the work that pays my bills. I am a racialized settler on stolen land, a product of immigrants, that is using my privileges to help other settlers come here. I am a gatekeeper for a colonialist system that I have bought into. I profit off people’s mistakes. I hold up a system that refuses applicants from Africa at the same rates that many Western European applicants get approved at. I realized that I have avoided refugee work possibly because of the way the system is so confused on credibility and my struggle with trying to break down that concept with respect to racialized bodies.  When litigating complex administrative law issues or being on the front lines of working in detention centres, I feel overwhelmed by the emotional gravity/unfamiliarity of the spaces or disconnected with the legal tests being applied/debated.

All of these factored into the speech below:

As I discussed below, generally Tina and I received good feedback (including one white man who came to us right after we spoke thanking us for ‘including the Indigenous piece’ but I did have the interaction I documented below.

There were many reasons I did not stay for the after-party social (the amount of time I have spent away from my spouse doing community engagements, primary among them) but honestly I was also tired. I have felt tired as a result of the weight of trying to break down and understand my complex relationship with my work.

Since posting my experiences, I heard from some attendees that my comment that the land was ‘stolen’ and then naming ‘white supremacy’ caused some uncomfortability at the tables. I faintly remember seeing Chief Justice Hinkson from the corner of my eye looking a bit uncomfortable as well.

I don’t want to get into the legalities raised by this colleague in our profession. Indigenous communities never ceded the land that I am on and for me that means it was stolen from them. Whether it was taken in other circumstances and areas with some sort of contract, the terra nulius and racial animus that underlined it, makes those transactions problematic. I don’t own these lands, nor do I believe I do when I buy a house. I do so on paper but not in reality.

On the point of white supremacy, I want to clarify to my Asian brothers and sisters that this term does not mean I am comparing white judges and lawyers to the KKK. White supremacy exists on individual animus/hate levels but my comments were addressed at systemic white supremacy, for which I will adopt the definition from Erika Wilson, UNC Chapel Hill in her excellent paper “The Legal Foundations of White Supremacy”:

I think Winston Sayson, QC in his speech highlighting the comments of the judiciary in the Komagatu Maru case, or if you look into the wording of earlier immigration acts, makes it clear that this was ingrained into the law and did not just ‘disappear’ along with racism. The explicit removal of these phrases and barriers has not meant they do not exist in other spheres, ones I am still working to unpack, write, and consult about.

I have been reflecting a little bit on whether it was the right time and place. While Tina and I had predicted the uncomfortability, there were other things I personally did not foresee. The one thing I regret was perhaps not seeing how our speech may have taken the limelight away from the winner of the award – a woman of colour. Tina and I discussed how we could use the words as a transition into lifting her work up and showing her off as an example.

I also was honestly not prepared for our speech to serve as a such a sharp contrast to the speech of Madam Justice Shergill. We had not known that her speech was about the very real ways in which we often create artificial barriers and how we have to have the mentality and mindset to push through. We also did not expect to go before the award honouring Winston Sayson, Q.C. who spoke about meritocracy and our need to work harder and to fight so one day we cease to exist as an organization. Again, those used to be the ways I felt as well, arguably even when I was serving as a Board member as FACLBC just a few years back.

Another moment also resonated with me. I had a mentor I highly respect come up to me and ask me at the FACLBC Gala if i was “still doing immigration work” after having seen likely my recent written pieces and advocacy,

I feel like this dichotomy doesn’t necessarily exist but when you are Asian it does and it is limiting. The reality is today, by virtue of the way we work, we have to run business ventures while serving community and family in our own ways.  Yet, I will be honest in sharing that for this very reason I have disconnected with close friends and struggled (in some circumstances) to enjoy new relationships – feeling often times neither ‘here’ nor ‘there’ in trying to grapple with how much I am a business and an advocate at the same time.

These days I constantly feel guilty about the work I choose to do or do not do. I feel too privileged in social justice spaces to be sharing my perspectives and the same uncomfortability in privileged spaces, where I often disengage from conversation. It is a journey many of us are having; how we create our own spaces to talk about this, heal, and balance work and social lives will be determinative of our ability to be both happy and motivated to keep doing this work.

This morning as well another friend/mentor posted something on Facebook that resonated with me. Do we do our work in “love” or “anger”? Should our goal to do work that eliminates the need for affinity and move beyond our differences to a world where we are all one. This was likely how I saw diversity and a future a few years back but today I can’t say I see it in the same lens. I think capitalist societies will have to operate where someone is doing the labour and someone is making the profits. There will always be those on the outside and the bottom, they will more than likely be darker-skinned and visibly different (be it many persons with physical disablities or trans-community members), and I feel it is the role of Government, social services, and human goodness to hold them up.  I also think we need to tackle this notion that people of colour cannot be ‘angry,’ that we have to ‘smile’ through our oppression, keep our head down and work, and ignore systems that need changing. I have really resonated with the teaching of Dr. Ken Hardy when he talks about trying to turn anger (enrage) into productive outrage which is to be embraced (see his piece: here) . I do see a real fear in destructive rage where we do not give space for individuals to be angry or speak truth to the inequities they see.

“That’s the Problem with You People” – A Note on Self-Care

These days I have been reflecting on how much of  a burden I am taking on in my own mind trying to work through these issues. I need to give it time to be free and breathe.

I had an example of this. Just earlier today Olivia and I were crossing the road. A woman was walking ahead of us with her dog in tow. The dog was falling behind. As much as we tried to get it to move. The lights were about to change. I was worried about the dog and turned around trying to hold it and bring it to it’s owner. The dog ended up avoiding me and almost swerving into the road. Thankfully, it didn’t get hit and returned on it’s path.

The woman turned around and looked at me with her tired eyes. “Why did you turn around to grab my dog?” I stammered, I was worried. I didn’t want it go get hit. She answered “that’s the problem with you people. Save yourself first”

The idea that everyone’s problem and every social problem is now my problem has been a burden that I need to eventually shed. A mentor showed me his cup recently which said “Not My Circus, Not My Monkeys.” I told him I wish I could do that, but I cannot at this stage.

I am not a politician (nor do I inspire to be one at this stage). I simply am taking up too much head space worrying about things and issues I cannot control. I have also ignore my own health through this process, putting on weight, forgetting to disconnect, and frankly it’s become a problem. I’m going to start going back to therapy to discuss this as I sprint into my 31st year on this planet later this week.

I likely will need time ENTIRELY away from work in December but I have taken enough time this year. Olivia (my spouse) and I are also living like many in this city paycheck to paycheck and when you factor in the financial impact breaks have for contractors, there is no incentive to take extended time off. Even when we are on vacation, our work and clients follow us. It’s rare for Olivia and I to take a full day these days where we are not talking about work or our obligations – the realities of survival as racialized persons in an increasing tough town).

I am trying new ways to engage myself in this work. I need to. I may also have to jump into spaces to start doing the work that I would love to and start proactively saying ‘no’ to other work. If I am interested in policy, writing, looking at race equity, trying to litigate – I cannot continue to dabble in these spaces in order to make meaningful change. I have to commit time to writing, try and jump into human rights and race equity more substantively, and perhaps determine that there are groups I cannot help even if that work may be financially profitable or routine. This will truly be a test of values and I hope to have some of your encouragement, feedback, and mentorship through this process. I am grateful that in one of my new roles I mentor law students – and this work has given me the ability to mentor and work on my commitment to accessible justice and education.

Starting to Bring Together Asian Justice Advocates in Conversation

Going through the internal struggles I am going through and having conversations with others (particularly women of colour, junior lawyers, and recent law school graduates) who are experiencing the same thing I have decided we need to start organizing. One of our first plans is to create a safe and regular space to meet to talk about this. We do not intend to replace any current affinity group but also recognize that we need to have conversations within select small circles that do not encompass outside influence. We also need to widen the circle so it is not just lawyers talking, that we include other professionals, legal assistants, non-profit representatives, in better understanding our role and identity within the law.

I am looking forward to this as a healing journey and I invite those that are interested to reach out to myself, Tina, or Justin Choi so we can begin building and growing these ideas together in the coming months and into the new year.

I hope you enjoyed reading through this piece. My apologies for the lack of brevity (as usual).

Perhaps I can focus on breaking down this administrative law argument now that I have gotten this off my chest.

The Urgent Need to Create Leave Provisions for Undergraduate International Students

Since January of this year, IRCC has now provided instructions that allow for authorized leave periods of up to 150-days contingent on school approval. The problem now is that institutions have not kept up nor been held to account for not putting in policies that accord with these changes.

I believe they need a ‘call in’ so let me tell you why it is so pertinent right now to institute these changes.

The Current Policy

I have reproduced IRCC’s current policy on “Leave from Studies” below:

D. Leave from studies

Students may be required or may wish to take leave from their studies while in Canada. For the purpose of assessing if a student is actively pursuing their studies, any leave taken from a program of studies in Canada should not exceed 150 days from the date the leave commenced and must be authorized by their DLI.

A student on leave who begins or resumes their studies within 150 days from the date the leave commenced (that is, the date the leave was granted by the institution) is considered to be actively pursuing studies during their leave. If a student does not resume their studies within 150 days, they should do either of the following:

If they do not change their status or leave Canada, they are considered non-compliant with their study permit conditions.

In cases where a student has taken multiple periods of leave in Canada during their program of study, the officer should consider the student’s reasons for the various periods of leave. If the multiple periods of leave do not appear to support the expectation that the student is making reasonable progress toward the completion of their course or program of study in the time allotted by the course or program of study, the officer may determine that the study permit holder has not fulfilled the condition to actively pursue their course or program of study.

Examples of reasons for leave include but are not limited to the following:

  • medical illness or injury
  • pregnancy
  • family emergency
  • death or serious illness of a family member
  • change in program of study within the same institution, outside a regularly scheduled break
  • dismissals or suspensions (dependent on degree of severity)
  • postponed program start date (see Deferred enrollment for more information)

As you can tell these policies are short, broad, and open to the interpretation that was meant to be filled by school-specific policies.

Regarding just the instructions, I have recently tweeted some concern about a few important contexts that the instructions could do a much better job of breaking down to allow international students to recognize specific scenarios that they are facing:

However, in the piece I want to tackle the second part of this – that the schools need to authorize the leaves and they are behind on implementing the accommodation that IRCC has provided.

Current School Policies are Problematic – Particularly Considering Immigration Processes

Unfortunately, many institutions have not yet kept up. Their policies currently are either non-existent or restrictive in ways that are not defensible. Many discriminate based on perceived ‘levels’ of education – offering authorized leaves for graduate students in select programs but not undergraduate students. Many of these leave policies do not address mental health issues, the consequences of sexual assault, and other areas where options/knowledge is necessarily needed.

The challenge is that IRCC’s own instructions for students who are not actively pursuing studies and not authorized for leave, they should be changing their status to visitor within a reasonable time of no longer being enrolled or actively-pursuing studies. If the 150-days do not apply, international students really are swimming into uncertainty. Furthermore, their switching to visitor engages an application in which (as I alluded in another recent blog) creates a lot of uncertainty around self-disclosure and possible consequences.

Granting a school authorized 150-day leave has an added benefit of giving the student a gap before they have to make a disclosure. Perhaps in those 5 months, any illness or mental health challenges they are dealing with can have some plan or remedy that can fit within Canada’s medical inadmissibility regime particularly around excessive demand. Perhaps, in some cases switching to another status or even departure from Canada may be the interest of the students but a 150 days creates necessary space for those decisions to be made.

Another major problem, as a recent presentation to a set of institutions revealed is that while any of them claim to have leave provisions a disproportionate number of institutions don’t make those policies publicly accessible or transparent. This is problematic too when Officers are reviewing documentation from applicants which may (or may not) include these policies and are then unable to make informed decisions on granting extensions and post-graduate work permits. In my colleague Lily Le and I’s random survey last summer of 19 post-secondary institutions [all DLIs, all from the same organization, including both reputable universities and colleges] only 2 had any mention of leave with only one with unique information that was not a link to IRCC’s website.

Rise in Compliance Challenges on the Horizon

We know right now there is a major challenge because the number of international students attending #DLIs is not commensurate with the number of student being selected for Express Entry.

Per my colleague Dave Sage, highlighting the 2018 Express Entry End of Year Report:

“Only 29% of all ITAs issued to people in the EE pool were to those who claimed additional points (this means having completed studies in Canada, for one).”

In a recent IRCC talk, Dave Sage highlighted IRCC provided a figure of 1 out of 4, suggesting it is about 25-29%.

Given those percentage challenges, one way to address this bottleneck may be to refuse more students in the middle of their studies or sort out those students who do not have reasonable prospects of completing their studies. I suspect and predict, particularly with exit controls coming in and with more policies now in place, a corresponding increase in enforcement.

I suspect international students to increasingly run into challenges at the border, facing removal orders, and subject to compliance where educational institutions report them or when the information on forms, such as visitor records and student extension forms, triggers them.

Writing Public Policies to Respond

I have heard from a lot of institutions that the challenge comes from bringing together academic staff, international student staff, and administration.

The fear is that writing these types of policies may expose the University to further administrative challenges, start creating situations where students seek leave in overly excessive numbers, and also create possible disputes.

From my perspective, the bigger risk is not in tackling the avoidable challenges students will face but staying silent to them. I do believe students will begin choosing institutions based on the safety nets they can provide and that this is a positive, not negative thing, given the treacherous waters international students often have to navigate. I believe universities and colleges will lose business and open themselves up to risk of challenges to their practices (including perhaps legal) that will cost much more in the long-run then providing clear and transparent accommodation.

Schools that do not already have a team of RCIC, RISIA,  outside counsel, and international students who provide lived experience input should form these teams and start drafting leave provisions immediately.

IRCC Needs to Better Coordinate with Provinces

One of the concerns we have heard is that IRCC has dropped some of these new policies without enough time for Provinces to advise their ministries and also for Schools to consult. Changes such as undergraduate leave take time and take consultations that require balancing financial incentives to do so, the number of stakeholders that this involves, and also to determined whether this is indeed in the school’s best interest.

This will not take months for some schools.

I would suggest in the interim IRCC does provide either an H&C exception for those students who are not covered or authorized by universities/colleges OR instead involving the Province on an assessment for students who are excluded due to institutional rules.

Five Immediate Steps IRCC Could Take to Make Forms/Application Processes More User Friendly

Recently in Sbayti v. Canada (MCI), 2019 FC 1296, Justice Pamel (a recent appointee to the Federal Court earlier this year) had a bit of a field day with IRCC’s forms and processes. In this case, an individual who was in a grey-area situation with respect to a previous departure/possible removal from the United States was unable to properly answer a check box “yes/no” question while providing an explanation.  Justice Pamel allowed the judicial review and found the Officer’s assessment unreasonable.

This case got me thinking – what are some of the ways IRCC can change their forms to make it user friendly? I have five ideas of where to start.

1) A Catch All Box at the End of Forms

The challenge cited by Justice Pamel comes from forms that turn many questions that are of some confusion to an applicant into a binary “Yes” or “No”. The answering of “No” then greys out the box that allows you to provide any explanation.

One of the immediate solutions that I would suggest is to adopt what is currently being used in the IMM 5532 relationship box to ask clients if they have anything else they would like to share. Adding a catch all box could also serve to gather some of the important information to dig into compliance-related data and positive disclosure.

Again, because self-represented clients get a “Client Information” instead of a “Representative Submission” box [which I argue a separate “Cover Letter” section may be appropriate as well], these further explanations can often be missed throughout the application. A catch-all box on  a form would provide that added benefit, although possibly will provide challenges to the ways applications are filtered and triaged.

As you may know many individuals are being found inadmissible for misrepresentation for mistakes that arise out of what are more akin to uncertainties. This has a dual benefit of giving clients  space to express uncertainty but also giving further proof that a second question was reviewed and answered before alleging an individual was not truthful or made a material omission. Counsel will likely continue to utilize submission letters but for self-reps this will be a major added benefit.

2) Clearer Transparency on Information-Sharing

I have recently done a talk and am drafting an introductory article on how privigration (i.e. the meeting of privacy law and immigration law) is one of the most under-studied yet on the up and up areas. Via our interactions with border officers (which now will involve exit controls) and immigration application forms, our information is transferred through ‘personal information banks’ (PIBs)  to different government agencies and could be used for a variety of purposes that may or may not be justifiable under the Privacy Act. Right now this information is disseminated via small barely visible box. The number of different PIBs in which information from a migrant is being shared would astound the lay-person. Indeed, through the Gazette’s and various pieces put out by IRCC and CBSA that a major part of these changes are to increase cross-collaboration to track those who are abusing government social services. It also increases the tracking on refugees and other vulnerable migrants. There needs to be transparency around this and either the forms or accompanying instructions should provide that.

3) Specific Reasons for Refusal in a Separate Box (copy and pasted from GCMS)

One of the major challenges with temporary resident refusals is that the form does not contain full and detailed reasons to allow an individual to, in most times, even begin to address their refusals. Individuals need to file Access to Information requests that can take lengthy periods of time and for those without Canadian contacts or addresses be nearly impossible to submit.

I would suggest that IRCC move to a model other than the bullet point or the check boxes and into one where a small box where the Officer’s reasons can be copy and pasted from GCMS. This would decrease the strain on the ATIP system and allow applicants a clearer window on to how a new application can assist them. The unforeseen consequences of a system where applicants are denied these reasons is not only their lack of knowledge of judicial review and reconsideration as pathways but the continued exploitation at the hands of agents who are able to coax new applications and fees on the basis of ‘a few less check boxes’ to go.

It is not clear, as well, particularly in the context of Canadian refusals that written reasons can be requested. When you also place a 15-day time limit on judicial review and then refuse with no reasons it creates major procedural fairness issues for applicants to know the case to be met.

My solution would be to add a box and copy what is usually in the GCMS notes of the Officer – to put that section forward and let the applicants know. It cannot be up to counsel to advise their clients to know that this can be done, particularly where refusal letters are silent.

4) A Separate Uploading Section for Attachments to IMM Forms;

Online uploading is another notorious challenge. IRCC has made some major improvements (especially through their Express Entry portal) in clarifying where certain things are to be uploaded. One of the ones where I think changes can be made is in either making many of the standard forms drop down for the 10 year Personal History or else create a clear template/upload for the Attachments that we often add.

The consequences of not having this upload/process apparent are two-fold. First, applicants are unaware that failure to disclose relevant work/employment/volunteer history could have major consequences as they interface with permanent residence applications. Second, visa officers have consistently missed when these attachments are added to submission letters. Third-party Visa Application Centres (“VAC”) can through communication mistakes mis-shuffle/accidentally remove these important attachments.

5) Clarifying the Issues that Affect the Most Vulnerable Students and Workers

With workers and vulnerable students, there major concerns that revolve around particularly mental health (for both), attendance/continuous employment (for , and also for workers, whether or not they have “worked without authorization.” The problem with all three of these are that neither the forms or law provide clarity on the best manner of disclosure on the forms. When is a student required to disclose they are not ‘actively pursuing’ studies? This would not be considered “attending school without authorization” by technical definition.

Similarly, if a worker may be uncertain whether or not their employment is unauthorized if those contours are not made readily available how is work without authorization self-declared? The forms should not create a punitive ‘all-or-nothing’ proposition but instead serve to genuinely provide transmission for concerns and possibly corrections.

The same goes with mental health issues. I will do another blog specifically about the interaction with disclosure and admissibility challenges but the nature of the form continues the historical discrimination against those with mental health related challenges. It creates uncertainty.

It is my recommendation that IRCC provides separate instructions for the admissibility. Whether or not this reassures students at the very least it adds some clarity as to what should be disclosed and what possibly does not need to. Especially because these form questions are connected to triaging and possible delays. It would also strengthen the case for misrepresentation and lead to less confusion for students.

 

Speaking Notes – BCIT Diversity Circles – Immigration, Systemic Racism and Barriers to Student Success

My name is Will Tao. My Chinese name is Tao Wei. I wrote a post recently where I talked about being named after Victoria where I was born.  I am a Canadian immigration and refugee lawyer and a racialized settler on these unceded Coast Salish lands. 

I want to begin my remarks thanking Elder Alf Dumont, Ocean, Splash for their welcome and to reiterate that we’re having this discussion on stolen land and that as we talk about systems such as immigration we are talking about historical systems that were created to populate these lands with people who do not look like most of us in this room and that it was done, and continues to be done, with little to no consultation or input with the original stewards of the land, the Indigenous communities. I also want to thank Justin for being brave in sharing his remarks and for speaking for many silenced students. I could not have done what you have done when I was a student. 

I have been asked to address the context of immigration as it relates to status, belonging, and talk about my role as an immigration lawyer who works extensively with students like yourselves. Can I get a show of hands of how many of you are or were international students in the room?  [there was one]. I ask you to keep your hands up if you can. How many of you are friends with or have loved ones who are international students? [almost everyone]. 

I want to start by also acknowledging that immigration law and policy is steeped in colonialism and white supremacy. It is steeped in ableism and discrimination against those with mental health illnesses. It has created systemic barriers for women and those from other marginalized communities who do not fit the traditional check boxes of immigration. Both then and now. It is a reality that keeps me up at night and often leads me to both “seize up” and struggle to “speak up” to borrow the words of Canadian author, David Chariandy

It begins with history. Two remaining minutes is not enough to track the whole history of our immigration system but up front we need to name these things and giving light to some of these events.

  • 1906 immigration to open gates to British Subjects/Europeans – 96% European;
  • In the late 1800’s early 1900’s – Anti-Race Riots/Head Tax/use of domestic legal policy/foreign policy to exclude people of colour – 
  • Black Canadians in 1911 were excluded and climate suitability was used as an excuse;
  • Asians were excluded in 1923- beginning a long period of family separation and closure of the borders to a majority of Asiatic migrants until 1947. 
  • Immigration was once the Office of Immigration and Colonization in 1917 before being transitioned into the Department of Mines and Resources in 1936. That is the historical underpinning of where you are at – as colonized bodies, mines, and resources for the European settlers who assumed this would be “White Canada Forever.”

My historical argument is that we’ve moved from front end barriers that were explicitly enforced in law to now back-end barriers or dissuading factors that are more implicit. This is done largely through a process of assimilation that unfortunately by virtue of your immigration statuses you are all subject to and must master to obtain the status, permanent residency, and later, citizen.

Today, you continue to see an area of law and policy develop mostly off the backs of coloured migrant bodies and lives, yet with little attention paid to the role of race and a reticence to actually addressing. 

You will notice the lack of Black students in the room. You have African colleagues with 80-90 percent refusal rates where in many European Countries you have those as acceptance rates. For you in this room, you have an Express Entry system that sorts you into pathways and gives you points based on your, age, and language – possibly assimilating you and separating you from the work you want to do and the community you want to work within. You face challenges as a student with a two-tiered system that examines your attendance, your transcripts,and your border entries in a way it never did mine. 

The amount of stress these outside systems provide, don’t begin to address the inner challenges many of you face as migrants with temporary status. Through my own family’s lived experience, I know the effect it has on your internal family lives, financial challenges, emotional challenges.  I know it is in your interactions on transit, your interactions in the classroom, within diaspora with those think they can speak over you because they have been here longer than you, and so much of this is due to ignorance or assumptions that we must work to displace. I know as someone who works in these spaces I can say “I hear you, I see you, and I feel for you.” I will do what I can to share stories and hold your truth to their power.” 

My final advice, particularly for the men of colour in this room and with the additional layer of migration status and all the culture and history it brings with us, is to do your own healing and form stronger bond with each other but listen carefully and honour the experiences of Indigenous matriarchs and women of colour in your lives. It is a process that will change your world view and ground you. I know it has for me. Thank you. Gan Xie.

My Colonial Name is ‘Will’ – Here’s the Story of My Other Name ‘Wei’

“It’s Not What They Call You, It’s What You Answer To” –  ascribed to comedian W.C. Fields (but I received this teaching through an April Ryan talk, March 2019, Harlem)

The Story of My Many Name Changes

I have been through a few name changes in my life.

I was born Wei Tao. Later in elementary school at my insistence (the product of trying to fit in/bullying, and apparently too many “hi wei/highway” jokes) I asked my parents to legally change it to Wei William Tao. Sometime in late high school/early university, I replaced William (which I found too British and formal) with Will – the short, cooler, ‘One Tree Hill’ version of myself.

Recently ‘names’ and ‘naming’ have come up a lot in my practice and in my life.

The past two weeks I have been working on a file where an individual from overseas is seeking to change their name with immigration due to a change of practice from their home country.

I have had another very close friend have challenges changing their maiden name.

I also have found myself looking at political campaign signs over the past elections wondering why certain individuals emphasize their first name over their last, or how someone could have an anglicized Chinese name. I wonder about white people individuals adopting Chinese names with so much meaning and power, without acknowledging their erasure of our own names and languages.

For example, the history of how Chinese surnames were anglicized is rift with discrimination and hate, yet today people from ethnic communities might see the whitening of surnames as a privilege. The assigning of biblical names was also a huge part of the residential school genocide (see here for an excellent article from 2016 by Maija Kappler on indigenous name reclamation).

Finally, just last week a group of community organizers and I had a discussion where we talked about our names. Again, it was almost an after thought. We were all about to head out, just doing last minute small talk about various race equity topics when an individual I admire and consider a mentor and leader stated “one thing we haven’t talked about are the names we ascribe ourselves.”

My Chinese Name – “Wei”

I was recently at a workshop/retreat where I was prepared to introduce my name as “Will.” The first person to introduce her name, a Chinese Canadian woman, introduced not only her English name but also her Chinese name and talked about the meaning of that name in relation to an ancestral relative. Had it known been for her braveness in bringing her birth name into the space, I would not have as well. I didn’t do a great job in describing why that name is so important to me. I wish to do so here.

I have a beautiful Chinese name. Wei (维) is the first part of Wei Duo Li Ya (维多利亚) which means the Vic in Victoria. I was born in Victoria – my name means the land where I came into this world. Will (other than the cheesy saying ‘where there’s a will there’s a way’) has literally no meaning to me. My birth name has a meaning subscribed to the struggle my parents went through as early migrants, facing overt racism, struggling up Mount Tolmie to support the family. Even through all this hardship and struggle they wanted me to adopt the physical space/place in which it was happening.

By abandoning my name “Wei” have I abandoned those stories and erased them from my being and my family’s collective memory?

Out of every one in my family I was the only one to primarily stick with his adopted white name. For me, there was always this fear and concern that if my name was seen as Wei Tao there would be assumptions of me being an immigrant, a newcomer, and someone without language skills.

The last time I heard “Wei Tao” was a few years ago at a university alumni event. The name tag had Wei Tao and I distinctly remember scribbling Will over top of it in Sharpie Pen. I had apparently won a raffle in which they called out “Wei Tao” and it took me twenty seconds to realize that it was actually me. Needless to say they almost pulled a new name out of the hat before I stood up to claim my prize.

My Legal Name vs. My Given Name – and the Legal Profession

As a lawyer, there are many moments that make you pause and think. Generally this is a good thing when you are in this profession. For me, this occ every time when I am writing or signing my name on documents. Right now, the rule I apply is when i am required to put my legal name (i.e. swearing affidavits, or submitting Access to Information Forms, I put my name “Wei William Tao”) or everything else I will use “Will Tao.”

I actually love the names of my immigration clients from different places around the world. I particularly love the “Singh,” “Kaur,” and biblical ceremony involved in Punjabi-Sikh names, the way certain Euro-Russian families will add an a or not to surnames of their parents, of Iranian and Sri Lankan names of multiple syllables, and of Latinx names where they pay hommage to both sides of the family. I also love learning about Indigenous names – particularly when the story behind the name and the clans on different sides of the family are introduced. I am proud of the Tao (cc: my post here about my ancestral home town) but why am I so reticent to adopt the “Wei.” I am in a profession where marketability, presentation, professionalism, and competency is everything. Why is Will Tao more competent and presentable than Wei Tao .  

Also, as a legal advocate – how do I fight for community – to ask for more non-white names of spaces, to ask for colonial names to be removed (a process known as “un-naming”), if I cannot do it myself, to my own name.

“We Cannot Pronounce Your Name”

My spouse is known to most as “Olivia.” She had previously chosen another English name but was told to change it.

For a period of time she reverted back to her Chinese name Xiaoqin when she was in English classes, adopting the short form “Qin” for hopeful ease. A Korean-Canadian instructor told my spouse, to change her name. She said “people could not pronounce it” and drew a metaphoric “You know how Japanese were called Japs” to try and convince her [Trust me, I was in disbelief as well. This is a true story].

This was not the first time this had happened. She had first chosen her original English name in China when the English instructors asked everyone to choose a white name creating many “Michael‘s” and “Mary‘s.”

Not too long ago, her Human Resources (HR) recruitment class, the HR instructor out of the blue asked “I have been wondering why are there students with two names – a Chinese name and an English name beside it.” Perhaps this comment was coming from the perspective of some one with privilege of having two white names. Again, one of the many microaggressions that students (particularly migrant newcomer students) face in their early education in Canada and in the job market. These are the types of implicit biases (one’s I have probably adopted myself on the other side reviewing resumes) which continue to hold down people of colour at staggering impacts. See article here from CBC in 2018 talking about this.

Also – on a related note – what should we do about the mispronunciation of our names? While it is a meaningful gesture to have our names reviewed with us before introduced, it is even more meaningful when we have a person of colour who speaks the language share it or even space to discuss it’s origins rather than to just have us cringe at it’s mispronunciation or give a “nice try” forced Starbucks-pick up line smile.

Asking Our Spouses to Take On Our Names

The history of Chinese women with respect to maintaining their surnames is a fascinating one. I won’t repeat it but direct you to this New York times article here. 

The usual practice is to have children take on the surname of the father, carrying on the practice of patriarchy.

Recently, someone I really admire in the community told me he went against cultural norms and had his son take on his female spouse’s surname. This is beautiful and I only hope more individuals can do things like this, particularly where the histories of naming is so patriarchal.

We also need to give space to women who choose to adopt their spouses white surnames. Too often in our communities, we are ostracizing women for doing this while not recognizing we are doing the same thing with our own first names but more importantly in the way we act in our workplaces and to other white dominant culture spaces.

Would I Be Brave Enough to Change My Name?

One mentor during the community organizer meeting talked about when he messaged his professional network and changed his name back to his Indigenous name from his adopted name. He mentioned it was quite a change.

What is stopping me from the similar liberation?

I look at the name Wei and I should feel love and a sense of place and grounding but I see foreignness and the judgments of those who see,  hear, and try to repeat it. The last time I heard. Just earlier this year, I published my Chinese name in a piece I wrote for a legal publication. It felt liberating but truthfully part of me thought that if I put that name it would be less “Google-able” and separate from my legal work.

Over the next few years I will be having this internal discussion with myself. Feel free when you meet or see me to try and call me “Wei.” Maybe even the dread, “High Wei.” Perhaps you can even honour some of our cultural traditions, and call me Tao Wei (which my mom does) with the surname first. I invite you to see how I react, hopefully with more familiarity will come more acceptance and more courage than I have historically show.

My Future Kids’ Names

I am not sure if any other young couples (with no children but plans to have them) have this activity where you “brainstorm” your future children’s name.  Sometimes it will be a random experience or place we visit and we will decide that this sounds like a good name. I likely, and maybe unfortunately, will still have my future child adopt an English name. One thing for sure is it will be unique and have meaning.

However, we have decided importantly that our child will have a Chinese name. I am not sure yet how to give it meaning: Do we name our child after an ancestor? Take certain characters from different relatives? Take two characters from a chengyu (Chinese idiom) to give it additional meanings? Unfortunately, my own knowledge of the Chinese language also fell victim to my early assimilation efforts as the second-generation product of first generation migrants. I will have to lean on my spouse more, but perhaps we all should.

Perhaps we should start learning these names and ask consent for the sharing of more stories about our names. Perhaps, ending on where the mentor started, we should have a longer conversation about this.

“When we lose our names, we lose the words given to us to define ourselves” – Me

Five Tips for Immigrants to Protect Themselves Against the Media’s White Gaze

“Our lives have no meaning, no depth without the white gaze. And I have spent my entire writing life trying to make sure that the white gaze was not the dominant one in any of my books.”

– the late, honoured, Toni Morrison

I read a lot of stories and news reports involving migrants and newcomers. A lot.

I also am very conscious of those who are writing those stories and are not immigrants or the direct descendants of immigrants themselves. I’m speaking particularly about white people. If this makes you feel somewhat uncomfortable, I have a recommended read before you continue on here.

Whether sub-consciously or not, white people write about the coloured bodied or immigrants in a different manner than those lives are experienced by those who share their stories. There are different variations of how this looks. For some it is in condescension, others exoticism, others in a sympathetic-leaning white knight or virtue signal. There are other writers who ostracize, criticize, and expose colour and migrant lives in a way that they would never dare do to a leading business person, politician, or celebrity. Perhaps it is the fear of lawyers or the open vulnerability of migrants, yet this is a growing concern and one that needs to be addressed on a more systemic level. From the U.S. cheating scandal where there was a clear difference in treatment shown between writing about the celebrity actresses and the wealthy daughter of Chinese migrants, to the overwhelmingly graphic details of her life and upbringing to the constant stories of migrant and coloured wrong-doings that splatter across front pages in this countries – I notice it as a visceral reality.

This week I have been looking a bit at the way Courts want to open document transparency and how media is taking an active role in trying to open up migration cases to the public’s attention. Indeed, a local journalist recently tried to open up a refugee hearing, a private proceeding meant to protect the identity of a claimant, in order to try and get the details of a gory crime to the public. These migrant scoops  serve a public appetite for those who are not us, here with us, doing things we would like to admonish them for doing. They are a white Canadian gaze on a increasingly changing definition of Canada, and a fear of losing it’s historic ‘whiteness’ particularly in mainstream media. I can’t blame the authors and I am not blameless. I too actively do work that profit off migrant mistakes, a stark reality of the colonial work that pays my bills and rent. Media, as an institution, unfortunately also does the same.

 

Why Migrants Should Be Careful Giving Media Interviews

In the past, I have provided my perspective on why Media Must be Cautious Covering Individual Immigration Cases

Today, I will change this to the migrant perspective. I have deep concern that migrants, in attempting to feed the narratives of journalists, are exposing themselves to not only personal risk but also compromising their own immigration status in Canada. I have a few pieces of advice for migrants, newcomers, refugee claimants and others who might be facing this double vulnerability.

TIP #1:  Recognize Journalists are (Generally) Not Your Friend – They Are There to Make News and Gain Views

This is the starting point. I am able to provide interviews now (including some I openly regret giving) to try and provide a voice for migrant communities. However, I am not a migrant myself and am not at risk when I speak and share experiences. When you are an international student, when you are on a work permit, when you are making a refugee claim – your voice is tied innately to your immigration status. Your published name alongside your transgressions is enough to have attention drawn to your immigration file from authorities.

Part of the work journalists are increasingly engaged in is advocacy. Their primary goal (other than sales and readership) is to try and gain market share of a topic. Several local journalists have gained notoriety by exposing wrongdoing and having their work lead to changes in Government policies. While much of this may have great long-term implications, the short-term implication may be use of you as a poster-person for a problem.

Remember, not all exposure in the context of vulnerable persons – is good exposure.In some cases, journalists may be in fact looking for a migrant voice to express disdain/anger towards other members of one’s own community. Particularly in this day and age where expressing one’s own non-popular views comes under heavy scrutiny (particularly around issue of race/status), it is a common journalist trick to get someone else to say it or better yet – someone within the same target community.

It is not all negative. There are several cases where the media have been able to put external pressure on the Government and encourage them to stop removals and grant extraordinary relief. In most those cases, there was some active litigation or strategy incorporating the media. These cases did not come from the mouths of individuals being interviews as part of some pending investigation.

I know saying no is difficult. Many of us are enthralled by the opportunity to be on TV – but think twice before agreeing to be in the media and expose your life to the media’s gaze.

 

TIP #2: Misrepresentation Doesn’t End at PR

One of the things I have seen recently is several immigrants, with their published legal names, admitting to having paid for their jobs or to working excessive hours in order to qualify for permanent residence. In some of these cases, it appears that the individuals have now obtained permanent residence and possibly even citizenship.

An individual admitting that he or she may have paid for part of their qualifying work experience can have major impacts on permanent residents and even citizens who obtained permanent residence on the basis of this information. Paying for one’s job or receiving support from an employer to falsify duties would be considered material misrepresentations that have a direct impact on the assessment of a permanent residence application. Many of the large scale frauds in which permanent residents are finding themselves  Immigration Appeal Division involved third-party/employer wrongdoing.

Remember that s.40 of the Immigration and Refugee Protection Act covers both foreign nationals and permanent residents:

Misrepresentation

  •  (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) 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 this Act;

    • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

    • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

    • (d) on ceasing to be a citizen under

      • (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

      • (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

      • (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

  • Marginal note: Application

    (2) The following provisions govern subsection (1):

    • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

    • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

  • Marginal note: Inadmissible

    (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).

  • 2001, c. 27, s. 40

  • 2012, c. 17, s. 17

  • 2013, c. 16, s. 16

  • 2014, c. 22, s. 42

  • 2017, c. 14, s. 25

For citizens too, when an individual obtains permanent residence and later citizenship by virtue of this fraud, revocation proceedings that be initiated. It is a little difficult to trace with all the Citizenship Act amendments but a good summary is below:

Status of a person post-revocation

If the person’s citizenship was revoked due to false representation or fraud or knowingly concealing material circumstances during the citizenship process only (e.g., lying about residence in Canada during the relevant period), the person becomes a permanent resident as per subsection 46(2) of the Immigration and Refugee Protection Act (IRPA). Revocation in such situations does not itself jeopardize the right of the person to remain in Canada; however, the person must meet all obligations under the IRPA. For the residency obligation under the IRPA, the five-year period begins on the date the person becomes a permanent resident. If the person’s citizenship was revoked on the grounds they became a permanent resident by false representation or fraud or knowingly concealed material circumstances, the person will revert to foreign national status. If the false representation or fraud or concealing of material circumstances was with respect to a fact described in sections 34, 35 or 37 of the IRPA, the Federal Court, in certain cases, may also declare the person inadmissible and issue a removal order.

If the person is a dual citizen and the person’s Canadian citizenship was revoked due to convictions for terrorism, high treason, treason, or spying offences, depending on the sentence received, or for serving as a member of an armed force of a country or organized armed group engaged in armed conflict with Canada, the person becomes a foreign national.

If the person, who is a foreign national, is in Canada once citizenship has been revoked, the person is in Canada without status. The person may be reportable under subsection 44(1) of the IRPA and may be subject to removal from Canada.

In short, there are major implications of disclosing something so seemingly innocent as confirming a history of having been exploited. It is a double-edge sword that applicants face which makes it pertinent that proper advice is obtained before publicly speaking on these types of issues.

 

TIP #3: Know about the Process of Contacting CBSA Criminal Investigations and Applying for Work Permits for Vulnerable Persons

There are many options for workers and other individuals who have been abused and taken advantage of. This includes work permits for vulnerable workers and for victims of family violence.

Many individuals also unaware that Canada Border Services Agency has a Criminal Investigations program that operates as an arms length investigation where there is fraud, criminal activity, and other sensitive situations that may require further investigations. While they cannot provide immigration relief – they may be much more sensitive than the media may be around your personal situation. Of course, adequate legal advice should be sought before approaching CBSA Criminal Investigations – which may involve a more holistic review of your immigration status in Canada, weighing pros and cons of approaching Criminal Investigations. There may be some benefit to making a written affidavit statement before approaching authorities to set out the material facts. See also Tip 5 below.

 

TIP #4: Know that  IRCC/CBSA Tracks the News

Immigration (IRCC) reads the news. Indeed, that is how much of their programming responds to changes – through gathering feedback from social media (Twitter), reading news stories, and meeting to discuss them. If your name is part of an expose, you can best believe you are on IRCC’s radar. From my perspective, until you  understand the legal ramifications.

I still remember one time I was outside CBSA (unable to enter the detention center because it was full) and tweeting about it. Before I could even enter, the Senior Manager came out and said he recognized the problem and saw my tweets.

I have been able to leverage social media somewhat successfully to push change but I can tell you that the analysis, the criticism, and the choosing what to say and what not say is an art. When your name is provided to a journalist for the front page – that control is now out of your hands.

In admissibility hearings, the filing of newspaper articles as evidence before the Immigration Division and Immigration Appeal Division is very common. Your own words and actions could create challenges for you down the road, particularly when you try to introduce new evidence and sworn testimony.

 

TIP #5: Seek Independent Legal Advice

I recommend that every migrant asked to speak to the media about their personal situation and in doing so disclose sensitive personal information take adequate steps to seek independent legal advice. This advice can guide you as to whether there can be some advocacy benefits to media. A legal advisor can also help you determine whether your personal immigration matter requires steps such as confidentiality motions in Federal Court, simplified procedures for anonymity, or applications for private proceedings (among other steps).

I do hope that more institutions exist on both sides – not only to try and push more nuanced journalism and train on some of these ethical issues for journalists, but also to utilize some of that knowledge to provide media training for newcomers and migrants. It would also be beneficial for more established organizations, unions, and support networks to consider helping shield individual migrants where necessary or provide media spokespeople/translators to assist.

 

Conclusion

I am a friend of the media and consider many journalists friends, supporters, and colleagues. I support open transparency and generally am glad that our democracy is one where we can talk about the crevasses. Ultimately, I think the more we talk about rather than ignore issues of migrants, the better our collective understanding will be and the barriers that exist between us will be broken down.

I also know that much of what journalists do may not be conscious. It may not be a product of their own ill-beliefs or fantasization about migrants but rather the economics of the newsroom or the culture of seeking the strange or exotic. I expect (and hope) many of my journalist friends will be taken aback by my words, start justifying by stating they have a spouse who is a POC or that they are a POC themselves, and they would never do that. I’m going to say that we all do this – and this is the norm. We do not offer newcomers, migrants, and marginalized community the same expectations of privacy, representation, and voice that we do those we work with, befriend, and hold to higher authority. This is a historical and naturalized human response.

Whether we can unlearn it and choose – on occasion – to put our own careers and scoops on the side to allow an interviewee to seek legal advice or community support before speaking to us – is how we will demonstrate how far we can go to changing the role of journalism as projecting society’s white gaze.