All posts by Will

Post-Graduate Restoration Woes Continue – Ntamag and the Nookala R.182 IRPR Conundrum

PC: https://plugin-magazine.com/living/sonica-festival-of-transitory-art/

It has been awhile since I have written on post-graduate work permits and restoration but I feel inclined to do so as a result of a recent decision of the Federal Court in  Ntamag v. Canada (Immigration, Refugees and Citizenship) 2020 FC 40.

 

Ntamag and Chief Justice Gagné’s Decision

The facts are not too relevant in what I am about to assess. In short, Ms. Ntamag did not apply for a post-graduate work permit before her study permit expired on 30 November 2018. She only received confirmation of her completion of studies on 4 December 2018. She waited until 16 February 2019 to request that her status be changed to visitor. That visitor restoration was denied on the basis, among three other factors, that she did not accompany a post-graduate work permit application with the restoration application.

For a little background context (although Associate Chief Justice Gagné’s decision does not highlight this), IRCC put out a program delivery update on 14 February 2019 which extended the eligible period in which an Applicant can apply for a post-graduate work permit from 90 days to 180 days. This change also removed the requirement to actually hold a study permit while making a post-graduate work permit application. Furthermore, the provision was applied so that applications moving forward could benefit from the extended period of time.

What the Applicant was presumably trying to do was to restore their status to visitor in anticipation of later being able to make a post-graduate work permit application while a visitor. We have no information in this case about when the decision was made and whether the Applicant could have presumably restored her status to visitor before first before making another post-graduate work permit application. We do know that it appears the application was deficient of information to assess her restoration to visitor.

Perhaps what is more problematic is that as a consequence of the Applicant arguing for the restoration provisions in R. 182 IRPR having one broad (‘shall’) interpretation [see para 15 of decision] – Associate Chief Justice Gagné returns back to what has become a problematic tenant created by another Federal Court case Nookala v. Canada (Citizenship and Immigration), 2016 FC 1019 (CanLII), which she applies:

[18]  Ms. Ntamag also did not include any proof that she had applied to the PWGPP, nor does her Application mention any intention to do so. Yet, Ms. Ntamag was represented by counsel who was likely familiar with the IMM 5708 process for visa extensions and restoration of status. However, Ms. Ntamag has offered no explanation as to why she failed to include these two pieces of required information. She has also not submitted any evidence that she has applied for a PGWPP since February 2019.

[19]  Given that the application is missing several required elements, and that Ms. Ntamag has not explained these gaps in her materials, I find the Officer’s conclusions reasonable.

[20]  Second, I am also of the view that the officer did not err in his interpretation of section 182 of the Regulations. Subsection 220.1(1), which is referenced in Subsection 182(2), makes it clear that an Officer must not restore the status of temporary resident’s Study Permit if they are not currently enrolled at a designated learning institution or actively pursuing their course or program. As Ms. Ntamag was not in compliance with these conditions at the time of her Application, the Officer’s interpretation of Section 182 and its relevant provisions was reasonable.

[21]  One of the conditions imposed on a PGWPP applicant is that the application be sent before the expiry of the applicant’s Study Permit. As Ms. Ntamag did not meet that condition, she asked to be granted a Visitor permit to be valid until January 1st, 2021.

[22]  However, just as section 182 and the 90-day grace period that it provides do not apply to a former student seeking a PGWPP, they do not apply to a former student seeking to obtain a Visitor Permit. Ms. Ntamag could not simply rely on section 182 to obtain a different Temporary Residence status than the one she had held before she applied (Nookala v Canada (Minister of Citizenship and Immigration), 2016 FC 1019).

 

Analysis

It is unclear if the 14 February 2019 PDU was every put in front of the Court in this case as an argument. Had the Officer ignored this development and the intention created by IRCC to remove the requirement to hold a study permit (and allow the holding of a visitor record) at the time of application, perhaps the reasonableness of the decision would have been put in question.

This decision also re-highlights a fundamental disconnection between the wording of R.182 IRPR and the application in practice that it has taken through policy instruments and other processes.

R. 182 IRPR states as follows:

Restoration of Temporary Resident Status

Restoration

  •  (1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

What does that ‘restore that status’ ultimately mean?

IRCC has provided up instructions, that as counsel for Nookala highlighted in their post-case submissions [see para 24 of that decision] asks officers to look at restoration not through a backward lens of restoring an individual to the status they held but rather to a status they are able to meet, if they still meet the initial requirements of their stay.

Eligibility requirements for restoration of status

Applicant requirements

The applicant must

  • apply within 90 days of having lost their status;

  • meet the initial requirements for their stay;

  • have not failed to comply with any other condition (e.g., working without being authorized to do so);

  • meet the requirements of the class under which they are currently applying to be restored as a temporary resident.

  • have lost their status because they have failed to comply with any of the following conditions:

    • Paragraph R185(a)The period authorized for their stay.

    • Subparagraphs R185(b)(i) to (iii)The work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the

      • type of work,
      • employer, and
      • location of work.
    • Paragraph R185(c)The studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the

      • type of studies or course,

      • educational institution,

      • location of the studies, and

      • times and periods of the studies.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html 

When IRCC’s own policies are asking Officers not to be too literal, the Court is still returning to the legal provision and taking a literal interpretation.

As Nookala’s counsel provided, IRCC’s instructions (still up four years later) suggest:

The phrase “initial requirements for their stay” should not be read too literally when it is being applied in the context of a restoration application, and the requirements of section R179 should not be applied rigidly in that regard. The preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident. The desired approach to the restoration provision of section R182 is to be facilitative and consistent with the current approach to extension applications of the provision in section R181, since the two provisions are similar in nature and section R181 actually refers specifically to the requirements of section R179.

See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html 

Incompatibility with Current Practices

IRCC’s current recommendation on restoring post-graduate work permits is actually the very process Justice Mactavish found problematic in Nookala. As per, this Immreps response below, a transitory restoration to student is now the preferred process:

Last year, while this process was unclear I was successful in restoring someone via a transitory visitor status doing the same thing that the Court in Ntamag found problematic except for the fact I attached a post-graduate work permit application. That cannot be, however, the principled difference – especially if the Applicant has 180 days rather than 90 days from completion of studies and could arguably complete both a restoration to visitor and make a new post-graduate work permit application within the applicable period [subject to R.199 IRPR].

This cases also raises questions about IRCC’s many other programs that operate on a model where restoration to a status not held is a basic tenant. For example, spouses who have lost status but are applying for Inland Sponsorship are able to restore their status to work permit holder. We frequently assist out of status workers who no longer have an employer/arrangement in Canada to restore their status as a visitor while awaiting a new employment opportunity.

It is important to note that while the case law so far has been negative (particularly of late) on the PGWP matter, I would suggest that many cases have not yet seen (and may never see) the light of day. I still believe in some of these cases pursuing either settlement with Department of Justice or reconsideration options might seek remedies better than having the Court need to reconcile two presently irreconcilable provisions.

That being said, if Justice Gagné and the Nookala impossibility of restoring to a transitory status is continued, all of IRCC’s guidance on restoration through a transitory study permit status and the regulatory changes that allow an individual not holding a valid study permit to apply for a PGWP, are rendered irrelevant in the context of restoration.

 

Conclusion

I believe that for the interest of fairness and to reflect practice, restoration should be given a broader interpretation than that meaning one can only restore to a status held. It should be forward looking.

I think IRCC should urgently clarify instructions for Post-Graduate Work Permit restorations (something they should have done years ago) and then hopefully lawmakers can amend the R.182 language to clarify that the restoration of these statuses is a forward (not backward) looking endeavour.

Race was Yesterday’s Problem (An Immigration-Themed Poem)

Screenshot from FreeDictionary

Race was yesterday’s problem

We’ve apologized to you people

Made promises we (somewhat) still try to keep

How many thousands more dollars do you need?

They are your grandma’s pains of yesterday

Why today do they run so deep?

We’re a Charter-abiding nation

We’re multicultural not racist

To demonstrate we’re impartial at decisions;

Look at the way we do our overseas missions

We focus on geography, on fraud, on intention

Race or ethnicity is nowhere in mention

Our locally-engaged staff can apply what they know (because, they know)

Our processing times – they ebb and they flow

We need to vet certain applicants more

Historically, there are issues with certain communities

We’re not directly saying that whiteness is immunity (at least we can’t write this down)

But how do we not know these kids are not yours (without a DNA test)?

How do we know this bank account isn’t hiding that your poor (tell me where your parents invest)?

How do we know you aren’t just here to give birth?

How do we we know you aren’t hiding your net worth?

These networks you people have – always cheating the system;

That’s why we need AI – ‘impartial (white male)’ algorithms;

We’re an institution of transparency – like a light filtering prism

You bring your stories and we turn them into study of ‘-isms’

If you are palatable, we keep you out of our prisons;

If you are exceptional, we might milk you for your wisdom;

For most of you, frankly, you are better off hidden

Live your life on ‘our’ land – just consider yourself winning

We’ll take care of politics, of decisions, of direction

We’ll find you once every four years when we’re having elections

And what is this you tell me about the ‘intersections’

Is that at the mailing address you are always hiding your taxes?

Stop blaming racism, playing that card

Overanalyzing Blackness, Othello’s role in the Bard

Just assimilate to the way we do things, go pick up a hockey stick.

Tell us what your watching on Netflix?

Sh*t – like your food smell on the bus.

Why are you putting up such fuss?

About your racialized self (even Google knows it ain’t a word)

Race was yesterday’s problem

But it’s todays for everyone else

 

Slow Down My Friend (A Poem)

Slow down my friend

I see that mind moving at a million miles an hour

The chip on the shoulder – the connection to the strained brain

Navigating both sun and rain, dark clouds lead to gaps in weather

Whether you are stuttering and faltering, apologizing for forgetting

But really you are apologizing  for the fact that you cannot begin to share all that is weighing you down

You are an imperfect person in this world demanding your perfection

You viscerally look weak in their eyes so you try and mentally exude strength – you are a rock not shards of broken glass

But it’s strength you never had, that was constantly extracted from you like a precious resource

You are an ocean losing it’s own water, a dream losing it’s own subconscious, a mission losing its own commander

Slow down, none of that matters

For yesterday you saw your mom smile for the first time in years

You were there when your daughter cried her first tears

You sat with a good friend that the whole world ignored

You ate food that they used to say was meant for the poor

You took one step further through a supposedly locked door

Slow down, to realize you’ve come so far

It doesn’t matter that back in the day they said you were sub-par

That year after year they ignored the light of your star

That you always took the middle back seat of the car

That you struggled to even pass or be even with the bar

You’ve sped through so much of your life or had those moments sped up for you

Growing up without your father

A sister who doesn’t speak to you

No sense of what love is in your life any more

A home that is empty every day of the week

Words trapped in the throat that you are so anxious to speak

You can’t liberate yourself when you are busy trying to keep up

Slow down my sister and brother, sip slowly from this cup.

Canadian Immigration Crystal Ball #2020: 10, 5, and 1 Prediction for the Next 1, 5, and 10 Years

It’s early enough in the New Year and we’re still greeting individuals, so forgive me for the somewhat belated first substantive post of the New Year.

I simultaneously often write three to four at the same, often with only one making it to the website. I probably have a hundred different articles in some form of 5-10% completion but unfortunately never seeing the light of day.

However, this is an important one. This one is written knowing there are people watching who would like to know what I am looking at in terms of the next one, five, and ten years of Canadian immigration and refugee law (if I last that long in the game). I hope this also peaks the interests of the academics, policy-makers, and media who explore these a bit further.

This imperfect vehicle we call Canadian immigration only works through constant renewal. When we see challenges and opportunities forthcoming and don’t act upon them in a reasonable period of time we miss out on opportunity and create avoidable hardship.

Crystal Ball Approach

Recently I have been to (and participated in) a few Crystal Ball talks where I predicted a bit on where things are going.

I recently wrote a paper for the CLEBC B.C’s Immigration Issues in Depth 2019 Conference titled “On Safety Nets and Sped Up ProcessesOn Safety Nets and Sped Up Processes – Will Tao

In the paper I do some crystal-balling but I stick to general commentary. I’m going to be bolder in this piece and make actual predictions.

I have chosen 1, 5, and 10 years as various markers. I have also chosen 10, 5, and 1 prediction to reflect the greater difficult predicting things that are further away.

I’m also going to be actively (and perhaps with bias) trying to address/tackle some of these things in my own practice.

I will state these broadly (headline style) in this post and follow-up with more detail analysis on these discussion points through out other pieces this year.

One-Year Predictions

1) H&C Refusal Rates Go Up Significantly As Do Removals Before First-Stage Approval;

2) JR Leave Refusal Rates/Dismissal Rates Temporary Go Up Post-Vavilov But Straighten Out as (Un)reasonableness Better Understood in Case Law.

3) Self-Employed Permanent Residence Undergoes a Re-Think Much to Megan Markle’s Chagrin.

4) Parent and Grandparent Sponsorship Becomes (Returns) to a Random Draw  in April with Possible Weighted/Humanitarian Components in/or Follow-Up Draws;

5) DLIs Demand Greater Autonomy in Supporting International Students on Issues Such as Leave and Part-Time Studies;

6) Express Entry CRS Points Remain High – Creating Precarious Migration Issues. Government Contemplates Giving Additional Points for Low-Skilled Work Leading to Skilled Work;

7) The Pilots and Trial Programs (Caregiver Program, Municipal Nominee Program, Agrifood) Go Through Hiccups;

8) Exit Entry Regulations Lead to Deportations (including erroneous ones) leading to Litigation and Returns to Canada;

9) More SDS or Specialized Programs (Vulnerable Worker, VTIPS, etc) but Greater Concern over Veiled Bias/Credibility/Investigation Findings;

10) Inadequate (but possibly AI/Machine-Generated) Procedural Fairness Letters Get Challenged Frequently Under Procedural Fairness – Leading to Interesting post-Vavilov Interpretation Challenges/Opportunities.

Five-Year Predictions

1) Indigenous Approaches/Practices Become More Common in Canadian Immigration. More Indigenous Members of Tribunals are Appointed/Indigenous Officer’s Hired. Indigenous PNP Programs Replace/Complement Many of the Regional Programs;

2) Post-Graduate Work Permits are Limited to Less Schools for Shorter Durations (but Extendable with Employment);

3) Discretionary Jurisdiction (Particularly in Context of Rehabilitation Elements and Long-Term Permanent Residents) Under Goes a Re-Think;

4) Misrepresentation under s.40 IRPA moves to a spectrum approach – with Punishments Ranging from One-Year to Lifelong;

5) The Charter Continues to Fail to Properly Uphold Migrant Rights;

Ten-Year Prediction

1) Former Canadian Immigration Students Demand (and Obtain) a Group Exemption (think DACA) After it is Revealed Significant Numbers of Overstays Still in Canada

Hopefully I am around still doing this work in 10 years to check in to see how these predictions went!

No, Harry and Meghan I won’t take your case pro bono – but here’s a proposition and some background

I think I found a semi-decent plan for Harry and Meghan to immigrate to Canada:

I’ll even throw up some links:

  • Self-Employed: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/self-employed.html
  • Discretionary Citizenship: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/overview/granting.html#discretionary
  • C14: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/canadian-interests-significant-benefit-television-film-production-workers-r205-exemption-code-c14.html
  • Express Entry PNP: https://www.welcomebc.ca/Immigrate-to-B-C/BC-PNP-Express-Entry-B-C
  • Significant Benefits C10 (for your charity work): https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/exemption-codes/canadian-interests-significant-benefit-general-guidelines-r205-c10.html

But, IRCC says no citizenship grant for now.

Probably because the Queen has not called yet or the local MP (inside joke – lawyers/some applicants may understand)

That being said, let’s talk about Access to Justice for a minute, and perhaps tie in the Rule of Law.

Here’s a proposition, brother Harry and sister Meghan:

You provide some significant donations to an organization such as the Downtown Eastside Women’s Centre:

Or Atira, RISE, UNYA, or a related non-profit of your choice….. please bring me proof of receipt

and I’ll take that as payment in lieu of a consultation.

Following the consultation I will quote a set fee (and perhaps hourly, if you prefer).

But not Pro-Bono. Pro-Bono is a real thing. A real challenge. Something as lawyers we cannot even agree on (as whether to make it a requirement or not). For some it means dedicating their lives. For others its a Firm PR stunt. It’s contentious, but ultimately it’s a lifeline for those who need it and a career sacrifice for those who work in the difficult spaces. A jump, I have not been able to fully make but one day hope to do so. It is a struggle many lawyers face to serve community and support their families.

One I will do one Vancouver becomes a little more affordable.

On the note of pro-bono, we have a ton of great immigration pro-bono/legal aid services in the city. We hope you can help promote:

– Access Pro-Bono (http://accessprobono.ca/)

-LSS (https://lss.bc.ca/lawyers/lssOnline)

– MOSAIC (https://www.mosaicbc.org/)

– ISS of BC (https://issbc.org/)

– UBC LSLAP (https://www.lslap.bc.ca/)


Just to name a few…

But you make to much to qualify (and rightfully so).

Vancouver is rapidly gentrifying – as is the divide between the rich and poor. As you step across the City and make your appearances, do tread lightly. Tourism is great (and another lifeline) but there are those in the cities who have yet to see a vacation in their life and may never.

We’re a raw city/Province filled with hope, love, and we welcome you but frankly speaking (and excuse my French) we got some other **** to deal with right now (see e.g. https://globalnews.ca/news/6402245/metro-vancouver-cold-homeless/, https://www.cbc.ca/news/canada/british-columbia/warming-tent-oppenheimer-park-snow-1.5425509, https://www.cbc.ca/news/indigenous/rcmp-morice-road-checkpoint-wetsuweten-1.5427015).

We’re also a city and country struggling with equity for women of colour (see e.g. https://www.queensjournal.ca/story/2019-02-28/editorials/women-of-colour-need-their-own-feminist-narratives/).

That still struggles with our colonialist past influencing the present future of our girls and women (https://www.cbc.ca/news/canada/british-columbia/indigenous-girl-grandfather-handcuffed-bank-1.5419519)

We also have an immigration system that is actively barricading our doors again to Black-African applicants. Where we have replaced their climate unsuitability with a view that their cultures are. Unsurprisingly women are painted as vulnerable/broken, and men as cheats – no voice to their resilience, no eye to their opportunity.

[side note: I spent an evening dealing with a matter where an overseas visa officer made a wild allegation that someone with a similar sounding last name – think John vs. Johnson in English meant that he fathered undisclosed black babies that were actually another mans]

So maybe there are some commonalities….

[Another side note, I ironically work in a building called the “Dominion Building” which was once the tallest building in the British Empire but now is probably better known for it’s elegant bathrooms/kitchens and frequent stair-master inducing fire alarms. In all honesty, there’s good orgs working here…. but I would hold the 1s and 2s for later.]

[Also final note, I think Meghan Markle is an wonderful actress and I openly admit to having had her influence my earlier career decision to become a Suit, which I thankfully gave up. I’ll write up that short story some other time.]

Top Five Memories from 2019 and Some 2020 Pre-Year Reflections (Because Why Not)

I am a huge lists fan.

I also have a very short memory span so writing things is literally my way of carrying forward 2018 into 2019

Combining both, I will do a quick list of my top five work-related memories of 2019, in no particular order.

This list has also transformed into a more personal piece as I continued to write. I was going to go all professional but realized my worlds are so blurred and I cannot talk about things that occurred without the people that made it happen. So it’s now a mix of both personal/work related stuff.

  1. Initiating and Co-Running the Parent and Grandparent with my colleague Erin Roth

This was fun. The irony of this situation was that our Firm internet was not the fastest so none of us actually signed up clients for the Invitation to Apply, allowing us to carry on the litigation without conflicts.

I learned so much from Erin’s strong written advocacy and deep diving into s.15 Charter arguments. Somewhere I definitely hope to spend more of my time investigating how to better have judicial recognition of race equity issues – through training, re-examining concepts of bias, and unpacking s.15 of the Charter among other issues.

Links:

HuffPost  Article: https://www.huffingtonpost.ca/entry/outrage-builds-against-discriminatory-parent-and-grandparent-sponsorship-program_ca_5cd589f3e4b07bc729790228 

CBC Article: https://www.cbc.ca/news/politics/immigration-parent-sponsorship-legal-settlement-1.5154407 

 

2. Co-Writing a Piece About the Diverse and Divergent Experiences Lawyers Go Through with Linda and Tina

This project also took awhile and I took some shots for it.

I was reading The Advocate back sometime in 2018 and I remember wondering why our Law Society Fees paid for content that often times didn’t reflect our lived experiences. We met with them, expressed our concerns, and was told – ‘you want to write something, write it.’ The process of getting this published involved an uphill battle as well. We had to make a major revision in the face of new terminology, older readership, and what I can classify as white fragility.

To their credit, The Advocate did in this issue and has provided a platform to underrepresented issues in the legal community. In that piece and in follow-up pieces, they have taken efforts to write about legal issues affecting racialized communities. Hopefully this work can be continued with others who choose to write for the Advocate pushing their traditional readership.

This work writing with Tina kicked off other projects as well. We both went to Conscious Use of Power hosted by Inner Activist. We organized as well for Punjabi Market, where I met incredible femme activists and enjoyed the brotherhood of Ajay, Gulzar, and Pall among others.

This course was life-giving, perspective altering, a striking wake up call to my colonized mind. I met so many incredible community organizers and brave souls. I also that Brother Aslam Bulbulia has entered my life as a model, and the two Men of Colour groups that have taken space in my social life/healing work.

Returning, was able to present with Tina again to BCIT and work with her on a few D&I initiatives. Watching her and her South Asian Legal Clinic of BC (along with other colleagues of mine, Krisha, Guida, Rana, etc.) come together was a great joy of 2019. Through this work I also met and started collaborating with Parker Johnson who has assumed a Big Brother/Uncle figure in my life already and a relationship I hope to hone more in 2020. If Parker is the Big Brother, I’d appoint Minelle Mahtani the Bigger Sister for everything she has done for UBC and increasing the race equity focus within institutions and in the community. Her book is incredible and I am working through it with love and care.

Link:

Article We Co-Wrote: “At the Intersection: A Conversation with Three Lawyers About Legal Practice, Purpose, and Their Pursuit of Passion”, The Advocate, May 2019At the Intersection – TP, LG, and WT piece

I think that my writing of this piece in a more vulnerable space helped inspired other pieces including I recently wrote in December 2019. For an audience of mostly decision-makers and Government lawyers, I presented a piece titled “On Safety Nets and Sped Up Processes.” It wasn’t a perfect paper by any means but moving from blog writing (with the specific A2J/public/quick read audience) to something a little more substantive had been on my radar for a while.

Link: On Safety Nets and Sped Up Processes – Will Tao

 

3. Writing a piece in the Vancouver Star-Metro Just Before the Federal Election

It was definitely weird seeing my face plastered across Vancouver and even more so having to have my mom tell me it looked like a prison shot. However, I remember most colleagues who said they sent it to their younger relatives or families reading about when together and sharing inspiration was fantastic.

I have to thank my brothers Gulzar Nanda and Davinder Sethi for their work on “South Van Should Vote” and starting the conversation of re-engaging residents in the community we live in.

I also want to thank my mentor Kevin Huang at Hua and the entire Hua Board and Staff for welcoming me on board. I’ve found a family there and I am grateful for it.

Link to Op-Ed: https://www.thestar.com/opinion/contributors/2019/10/18/will-tao-voter-exclusion-altered-the-lives-of-people-of-colour-this-election-we-need-to-show-up.html

Link to Wanyee Li’s fantastic (and raw) interview with me: https://www.thestar.com/vancouver/2019/10/18/we-want-to-speak-up-will-tao-on-the-need-for-more-people-of-colour-to-take-their-seats-at-the-political-table.html

 

4. Consulting on the Vulnerable Persons Work Permit and the IAD Rules

This year I was part of two government consultations in my role as a private lawyer.

The Vulnerable Persons Work Permit occurred as a last invite (Thank to Alison at SWAN!). Going there both as a SWAN rep but also wearing the hat of the CBA who were in the process of writing submissions. I was able to provide feedback and ultimately assist in reviewing the submissions.

The best part of the consultation for me (other than being in appreciation of the vast number of stakeholders involved in the process) was meeting Leanne Dixon Perera – someone who works for Government but bringing such a wonderfully rich and human perspective to it. Her research and the research of others (Sarah Marsden, etc.) has

I frankly showed up a little unarmed and under-prepared for the IAD Rules consultation but to be at the table to witness great minds from Government and Private Practice come together to improve processes was incredible. I was also able to share concerns about ensuring the Alternative Dispute resolutions process remained intact and that self-represented litigants would not be prejudiced by the speed of disclosure processes. I have also seen my IAD practice really pick up and I think that having a greater insight into the structure and processes has helped a lot.

 

5. Presenting to the CBIE and Developing My International Student Advocacy Lens

Working with a brilliant mentee  (Lily) to curate two workshops took a good portion of a month but I was able to look into international student issues across a vary wide range of topics. This has formed the underpinning of my current research on international students. Next year will involve me speaking on international students at Metropolis, CBA National Immigration Conference,  and again for the brilliant students of Cornell University.

On the point of mentees, I cannot give enough praise my mentee Tamara Yang who is an incredible future leader, academic, writer, and just someone I am super pumped on. She held up part of the CBA Twitter Days and as well was a big part of editing my many pieces alongside Lily, who I already predict will do incredible things in law.

Looking Forward to 2020

sans-Edelmann and Co.

Peter, as many of you know, is leaving to become a BC Supreme Court Judge.  His departure from our Firm is a huge loss to immigration law but a subsequent win for justice. I forsee him writing some of the best curated and thought out decisions on his way to a long career in the judiciary. I have much to learn from the way he practiced and thought out the law and also regret not learning more from my time here.

That being said “the safety net is gone,” and Erin and Erica the matriarchs of our Firm will certainly hold their own. We have a great team and to have us all back in the office again, in good health will be an incredible blessing and something I look forward to.

 

Family

There’s been ups and downs in the past few years but I am seeing the potential of a very strong family unit around my mother who is definitely Queen Bee. I look forward to spending more time with her and my sister as we all grow older and age.

 

Writing

I always have to end the year on a mea culpa. I haven’t written enough recently and I need to. Not only because of those who read this but writing is healing, learning, and growing for me. I was very surprised and happy to wake up this morning to a Best Law Blog and Commentary #Clawbies2019 Award.

I also cannot wait to continue reading incredible books. 2019 blessed me with some incredible reads/catch-up reads – Jenny Heijun Wills, David Chariandy, Minelle Mahtani, Arundhati Roy, bell hooks, to just name a few.

 

Final Two Thank You’s for 2019

Edris –  I have an assistant who is also a friend. It’s a dream. Today we pulled a 30 dollar couch from Craigslist together and then submitted a study permit application that he played a huge role in preparing. He’s an incredible human and I have learned so much from him. I will do everything in my power to support him in 2020 and have the world (and himself) recognize his brilliance and potential.

My Olivia – You are my rock. I can’t wait to explore the world with you in 2020 and then breath life to this world. Thanks for always being supportive and always being very clear and frank in your ask (polite word) for my support.

I have written more personal resolutions (shared with my sister Afsoun, a tradition we’ve kept now since law school) but we’ll have to see how those pan out.

Have a safe and happy New Year! See you on the other side of 2019-2020 :).

Thank You – #Clawbies2019

I have decided I want to write a longer (more substantive piece) about where I see Canadian immigration 1, 5, and 10 years (next decade!) from now. I will keep it short and sweet by re-posting in public a more private thank you that I posted on Facebook.

Again – my gratitude and thanks

Go check out the other amazing award-winning blogs! https://www.clawbies.ca/

Happy New Year!

The B-eautiful Struggle – A Poem about B-Words

We spend so much time focusing on the now and the how that we forget to look

Back

The ways we were taught, the ways we created this perception that our success and happiness depending only our abilities to be the

Best

Those B’s were never good enough. Yet those A’s came rarely. Just as rarely did they tell us that this society was not that promised meritocracy and that evaluation never was independent of our faces and names on the papers they graded – always judging our souls through these problematic processes. So many things I wish I knew

Before

Speaking of before – had I known before too late that our histories were the way they were. That we were never meant to succeed in this colony and that we had a presence they needed in order to

Build

A country on the premise of a supremacy and our eventual demise or productivity. They wanted us in Chinatowns not their towns. They wanted us as second-class and damn well did it for almost a century until we pushed back. That our ghettos were just that but now they say we’re building too many houses on these other

Blocks

Everytime I rise up with this jumpshot I’ve been working on I feel this 7-footer in front of me.  When I learn that step back, they tell me to step back, and that they now call it a travel. Got me leaning on one foot as if I’m Harden. Every time we fall, I feel the heart harden. Yet the other’s tell us we’re still good because we’re not

Black

We see you and feel you but are those emotions nearly enough? We still clutch our wallet with one hand and give you that hopeful dabs with the other –  hoping you see us too but shaking off the unconscious nature of what too many a-cultural teachings engrained in us so wrongly. From moms and pops telling me it was the music of criminals to white teachers looking disapprovingly at my baggy hoody. Their eyes told their stories and there were no black faces to ask the question of who “Matters.” We were all pretty much

Biased

Now that’s a tricky word. Because bias doesn’t exist in reality they say. It only exists unconsciously. Therefore it cannot be contained. Therefore it’s just human nature that we can attempt to minimize but will be maintained. Plus, more importantly, you need to stop playing that race card or investigating these coloured things because you are just creating your own

Barriers

You knew I would eventually get there wouldn’t you. That I wasn’t done just talking about cues and hues. That Intersectionality teaches us there’s different experiences of one’s abuse.  That chip on the shoulder that acts like a fuse. We feel like these walls are unscalable. Yet, we hold it in because we don’t want our struggle to be anybody else’s

Burden

We want to stop burdening those around us we got it. We were initially the Whiteman’s Burden now we serve as each others. We see another person in our community stepping up and in order to make ourselves feel better we dissect them into pieces in ways we would never dare to do to the masters and their institutions. In real life we scared, but we use our screen doors, computer screens, and cellphone screens as our defense to splatter some words to sound intellectual, to mask fear perpetual. But, it means little when they tell us to be more….

Brave

They say we can self-help our way out of it. We listen to those same relaxation tapes that tell us to pay attention to the

Breath

But what happens when that breath starts becoming hyperventilated, short, a struggle to even continue. We walk between these streets finding that our steps no longer are one ahead of another because we held down with all this weight to find

Balance

Imagine a balance beam of our culture on one end and your expectations on another. We don’t have time to put on the yoga pants, stand on the edge of our toes and “feel that stretch.” We’re stretched in our pockets, in our problems, and in our possibilities. We isolated in our own worlds, now tell me….

Brother

Where are all the brother’s at that care? Or those men that said they would be our mentors once we made it. Did they disappear once their going got good or the going got tough. Where’s all that so-called good stuff that others tell from their own mentors and generations of lessons learned. Are they hoarding them now like we’re about to steal their belongings. It’s like they took away our glasses and contacts, and left us here

Blindly

Therefore we follow their lead not our own hearts which continues to bleed.  But truthfully the pages were

Blank

to

Begin

with.

Broken

as I may be I still put together these shattered thoughts on this page. They can’t take away this pin and paper, they can’t love the girl but continue to rape her, they can’t love the song and dance, but ignore the sadness and despair. You see, we are different in our opinions and positions but see that we’re

Bonded

To what you just read and realizing you can’t go back as I did it when I first saw and learned about your

Beautiful

struggle.

 

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.