In Canada’s immigration law, anyone can be a terrorist

Yet another man used to act as an informal contact for foreign journalists who were seeking interviews with anti-government guerrillas in El Salvador.

None of these three people ever engaged in political violence themselves, and yet all of them – along with dozens and perhaps hundreds of others – face the threat of deportation on the grounds that they pose a security risk to the people of Canada, under a catch-all provision of this country’s immigration law that many lawyers decry as unfair and excessive.

“It’s an extreme overreaction,” says Ontario legal-aid lawyer Andrew Brouwer. “Their stories are so compelling. There’s not a single allegation of ever being involved in any kind of violence, much less a terrorist act.”

Brouwer is referring to a class of thwarted would-be immigrants to Canada who have been caught in a legalistic snare that would very likely have prevented Nelson Mandela from gaining residence in this country, had he been forced to apply.

Behold: Section 34 (1) (f) of the Immigration and Refugee Protection Act, which has been in force since 2001.

Just 37 words long, the section bars admission to Canada to any person who has ever supported an organization “that there are reasonable grounds to believe engages, has engaged or will engage in” acts of subversion or terrorism, a description that in many countries in this conflict-ridden world could easily apply to almost anyone.

If taken literally, says Toronto immigration lawyer Angus Grant, the provision would block admission by any member of the U.S. or British military — past, present, or future – because both those organizations sought to subvert the governments of Afghanistan and Iraq following Sept. 11, 2001.

As for the likelihood that Mandela himself would have been turned away from Canada’s shores — for being a member of the anti-apartheid African National Congress — a spokeswoman for Citizenship and Immigration Canada declined to state an opinion, but she did not rule it out.

“It would be inappropriate to speculate on a hypothetical question concerning an individual case,” Nancy Caron wrote in an email to the Star.

In the real world, many Canadian immigration lawyers are critical of what they regard as an unjust statute being manipulated by high-handed federal bureaucrats to punish law-abiding people who ought to qualify for refuge or residence in Canada.

“The breadth is breathtaking,” says Grant, now working toward a doctorate at Osgoode Hall Law School, focusing on issues of security and admissibility. “It’s outrageous.”

It is also the law of the land, as Salvadoran native Oscar Vigil knows better than almost anyone.

A journalist himself, Vigil once acted as an informal contact for foreign reporters seeking interviews with leaders of the Farabundo Marti National Liberation Front, the armed rebels who fought against U.S.-backed government forces during the civil war that ravaged El Salvador from 1980 to 1992.

Following the war’s end and after the rebels laid down their arms and reinvented themselves as a legitimate political party, Vigil briefly acted as their press secretary. Nine years later, along with his wife and their three children, he sought asylum in Canada after receiving death threats from right-wing groups in his country.

The entire family was granted refugee status and, earlier this year, became Canadian citizens — all except Vigil himself.

Formerly the executive director of the Canadian Hispanic Congress, Vigil, 48, was instead declared “inadmissible” to Canada under section 34 (1) (f) of the immigration code. In February, he was ordered to get out, an outcome that will almost certainly wrench his family apart.

His three children are mostly grown up and are thoroughly Canadianized after nearly 14 years in this country.

“They are not going to leave,” says Vigil. “That’s clear. What is not clear is the case of my wife.”

Her name is Carolina Teves, she works as communications coordinator at a refugee centre on Oakwood Ave., and she will have to choose between remaining in Canada with her kids or returning to El Salvador with her husband.

Vigil’s legal options have mostly played out, but he continues to fight the removal order in the political arena by means of a publicity campaign, including an online petition urging that he be allowed to remain. But Citizenship and Immigration Minister Chris Alexander has yet to give any indication that he is influenced by such appeals — or that he cares.

“All applicants, including Mr. Vigil, have the right to due process,” Caron said in an email, “but when an individual has exhausted all due process, we expect them to respect Canadian law and return to their home country.”

For Vigil, the prospect of deportation is only too real. Since 2002, the Canadian Border Services Agency has expelled 37 people under the section 34 (1) (f).

“The problem with using a blunt instrument like this is you don’t have a process of filtering out those for whom the law was never intended,” says Grant. “And then you just have the blunt instrument.”

Just ask Jose Figueroa, another Salvadoran asylum-seeker who is fighting a deportation order issued under the section that has snagged Vigil.

Figueroa has also been ordered to leave Canada, while his wife and their three children will be permitted to remain.

Holed up in a Vancouver church to avoid being marched out of the country by border officials, Figueroa acknowledges he once supported the FMLN and even recruited members on its behalf, but he denies involvement in acts of political violence – not that it matters.

Under section 34 (1) (f), it makes no difference whether someone has engaged in violence or subversion themselves. It is enough that they once supported an organization that at some point in the past possibly did engage in subversive activities or that at some time in the future possibly will.

“Many were members of minority groups fighting against a repressive regime,” says Brouwer.

In the case of El Salvador, it was the U.S.-backed military, and not the armed rebels, who most people would say were the real terrorists in a brutal, 12-year conflict that claimed roughly 70,000 civilian lives.

In the wake of the fighting, a truth and reconciliation commission blamed government security forces and freelance right-wing death squads for 95 per cent of the carnage. The FMLN, it said, was responsible for just 5 per cent of the killings.

Far from being a subversive outfit now, the former rebels have served as the democratically elected government of El Salvador for the past five years and were re-elected in a close presidential vote only last month. The government they head enjoys full diplomatic relations with Canada.

It is for having supported this organization — and not for any misdeeds of their own – that both Vigil and Figueroa are to be deported.

“If 40 people a year in Canada were wrongly convicted of really grave crimes, that would cause an outrage,” says Grant. “But this doesn’t get the same degree of outrage. Some of these people are truly inspiring individuals. They just have not done anything wrong.”

The prospect of deportation is not all that Vigil and Figueroa have in common. Through their respective lawyers, both applied under section 25 of the immigration act to have their deportations waived on humanitarian and compassionate grounds (an avenue of appeal that no longer exists for more recent security-related immigration cases). Both had their applications rejected by the same federal civil servant.

Her name is Karine Roy-Tremblay, director of case determination in the case management branch of the Ministry of Citizenship and Immigration in Ottawa.

A former diplomat — she once served as a visa officer in the Canadian embassy in Rabat, Morocco — Roy-Tremblay has earned a reputation among immigration lawyers as an especially hard case.

“Reading these decisions is incredibly disappointing,” says Laura Best, a Vancouver immigration lawyer. “I think it would be disappointing for all Canadians . . . These decisions aren’t being made in a contextual manner.”

Best was so upset by one of Roy-Tremblay’s recent decisions that she issued a request under Canada’s access-to-information law to find out how the bureaucrat had ruled in other cases.

Last month, she got an answer.

Since the beginning of 2013, Roy-Tremblay has ruled on five humanitarian-and-compassionate applications from individuals such as Vigil and Figueroa — people declared inadmissible on security grounds — and she rejected them all.

In Vigil’s case, Roy-Tremblay did not bother to write up her own decision, leaving it to a citizenship and immigration officer named A. Holmes to draft a one-and-a-half-page letter sent on Feb. 11.

The letter makes no specific mention of the special circumstances Vigil had cited in his request for an exemption, including his extensive community work as well as the near certainty that his deportation would cause the break-up of his family.

Since 2006, the case management branch of Citizenship and Immigration Canada has considered 24 requests for humanitarian and compassionate waivers of deportation orders issued under section 34 (1) (f) and reached decisions on 12 of those, according to figures provided in response to Best’s access-to-information request.

In what appears to have been an honest mistake, CIC failed to specify how many of those decisions were favourable to the applicant and how many were not, making it difficult to say whether the agency has toughened its handling of these cases in recent years.

However, figures supplied by the Canadian Border Services Agency do show a recent spike in security-related removals. During the past three years, 21 individuals have been deported under Section 34 (1) (f), an average of seven per year, compared to just 16 during the nine years before that, an average of 1.8 per year.

Toronto immigration lawyer Lorne Waldman says the system for deciding these cases is flawed because civil servants like Roy-Tremblay are expected to make independent rulings while being employed by the same ministry whose orders they are charged with assessing and possibly overturning.

“Minister-delegates are not independent because they are so close to those running the (ministry),” he says. “It’s hardly surprising that most of the time the decisions reflect what the government wants.”

As for Oscar Vigil in Toronto, he continues his fight but few legal options remain.

“They don’t even mention his wife and family, his accomplishments in Canada,” says Vigil’s lawyer, Steve Foster, referring to immigration authorities such as Roy-Tremblay. “There’s not a word about that. I think they really don’t care.”

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