rihatgiab said:
I applied for Canadian citizenship after completing 1095 physical presence days in Canada in November 2012. I got married the same month and moved to US to live with my American wife with the hopes of returning to Canada sometime later.
I had expected the citizenship process to take 3 years maximum, so I would still maintain my Canadian residency. However, the process took 3 years and 8 months. For personal and medical reasons, I have not been able to move back to Canada since I left.
I received a notice to appear with a citizenship judge in August 2016. I'm looking for advise on how to proceed with the citizenship judge interview.
Thanks in advance.
Ordinarily I would suggest getting a lawyer's help as soon as possible. But my sense is that would be a big expense for not much gain, not in these circumstances.
Assuming this means, as it appears it does, that you have been absent from Canada for at least 1095 days in the last five years . . .
IF you are lucky and get into Canada without being reported for being in breach of the PR RO:
There is some chance that when you come to Canada next (or at the least, when you come to attend the CJ hearing), you will be waived into Canada without a problem. My guess is that the odds of this are
not good. But it is at least possible. My guess is that it depends, in part, on whether there is a FOSS alert in the system for you, and my guess regarding that is that, indeed, it is likely there is a FOSS note or alert which will trigger a referral to Secondary at the PoE, and then in Secondary there will be some questions about your compliance with the PR Residency Obligation. More regarding this below, where I discuss the more likely scenario, the scenario in which you are not so lucky.
But a referral to Secondary at the PoE may not happen. You may be waived into Canada without a problem, without a Secondary examination, or perhaps even after a Secondary examination. And if you are waived into Canada, not reported, you will have an opportunity to appear at the CJ hearing, answer the CJ's questions, offer any further proof you have that you met the residency requirement when you applied for citizenship. You do not mention being issued RQ but if you are headed for a CJ hearing, I assume you were issued RQ and responded to the RQ. That was your primary opportunity to prove your case. Review what you submitted. Bring all the originals of what you submitted. Bring any additional documents you might have which will show where you were living in Canada, what you were doing in Canada, what employment you had, what other activities you engaged in (school, volunteering, community activities, any and all). Have originals to show the CJ and copies to submit into the record. Go prepared to make your case that you were present in Canada all the days you declared you were present and that otherwise you were
resident-in-Canada for the requisite three years prior to applying.
I might elaborate more about the hearing process, but my guess is there will be no CJ hearing. That is, that you will not be so lucky as to be waived into Canada without being reported, but rather will be issued a 44(1) inadmissibility report and that will preclude any CJ hearing.
Leading to the more likely scenario.
The more likely scenario:
Again, assuming your post means, as it appears, that you have been absent from Canada for at least 1095 days in the last five years . . .
Then not only is your application for citizenship in trouble, your PR status is likely to be in jeopardy as well.
As I already indicated, there are significant odds your FOSS has an alert and when you arrive at a PoE to enter Canada you will be questioned about compliance with the PR Residency Obligation, determined to be in breach of the RO as set forth in Section 28 of IRPA, thus issued a 44(1) Report followed by a Departure Order or a Removal Order (two names for what is essentially the same thing; I'll refer to it as a "Removal Order").
What really matters, however, is whether a 44(1) Report is issued, whether or not that is followed by a Removal Order.
The referral to a Citizenship Judge is made pursuant to Section 14(1) of the Citizenship Act, for the CJ to determine whether you met the requirement to be
resident-in-Canada for at least 1095 days in the four years prior to the day you applied for citizenship.
However, Section 14(1.1)(b) states that the CJ is
NOT authorized to make a determination if the applicant is reported for inadmissibility until that is resolved (technically based on the applicant being "the subject of an admissibility hearing" but in effect this includes being issued a 44(1) inadmissibility report).
What this means is that if you are reported at the PoE, issued a 44(1) Report, this will interrupt proceedings on your citizenship application until that is resolved.
That said, if there is an alert in your FOSS and you are examined regarding your compliance with the PR RO, as I noted the likelihood is that will result in both a 44(1) Report and soon thereafter the issuance of a Removal Order.
Even though the Removal Order is not immediately enforceable (and if you appeal, it will not become enforceable unless the appeal is lost, and not until the appeal is lost), that Order will preclude the CJ from making a determination, per Section 14(1.2)(b).
Finally, section 5(1)(f) of the Citizenship Act only authorizes the Minister to grant citizenship to a person who
"is not under a removal order" and thus, if you are indeed issued a Removal Order at the PoE, the Minister will likely proceed to terminate your citizenship application based on this provision. No CJ hearing. No citizenship. To keep PR status you will need to appeal the Removal Order and unless you have strong H&C reasons,
and you stay in Canada, it is likely the appeal will be dismissed, the Removal Order will become enforceable, and your PR status lost.
Or, the short answer: Bad news. Likely outcome is citizenship denied, PR status is lost.
h3a3j6 said:
. . . He cannot be removed unless his PR card expires AND there is a deportation order that targets him.
More than merely "not quite right," this is, rather, completely wrong. PR card validity is
NOT relevant in an adjudication of inadmissibility based on a breach of the PR Residency Obligation as set forth in Section 28 IRPA.
h3a3j6 said:
I have a friend who was in a similar condition 8 years ago. He's now a Canadian citizen living in Canada...
Yeah, meaning what? Was not reported? Was reported but appealed and won, and later became a citizen? Even if most of the relevant facts are nearly identical, the differences could be the difference.
Mostly this does not illuminate much, if anything, about what likely is ahead for the OP. Of course, as I noted, if the OP is lucky, perhaps the OP gets waived into Canada, attends the CJ hearing, answers whatever issues IRCC has identified in the referral to the CJ, and is indeed granted citizenship. That could happen. Probably a long shot, but well within the range of possible outcomes. Even if not likely.
In any event, as I outlined above, although again assuming absence from Canada for 1095 plus days within the preceding five years, the more likely scenario is that the OP is reported for being in breach of the PR RO. That will preclude a CJ approval for citizenship per section 14(1.1) of the Citizenship Act. The report is likely to result in the issuance of a Removal Order. That too, per section 14(1.2)(b) will preclude any approval by a CJ. Moreover, as noted, once a Removal Order is issued, that will mean the OP is
NOT eligible for a grant of citizenship, per Section 5(1)(f), with the likely result the application will be terminated (no CJ hearing necessary . . . albeit the OP may request a hearing or interview with a Citizenship Officer).
In the meantime, I essentially agree with the post by
frege, and perhaps the suggestion to withdraw the citizenship application if the OP is so lucky as to be allowed into Canada without being reported is worth considering. My sense is that coming to stay and live in Canada by the time of the scheduled hearing is not really a practical option, but if so lucky, it is an option.
frege said:
If you care a lot about keeping your PR status, and you don't have any extenuating circumstances, you should probably try crossing into Canada at a land border and hope you won't have to answer any questions about where you've been. Then withdraw your citizenship application and live in Canada for two years.
I would also note that
scylla asked the right question, even if the answer appears obvious.
In contrast, unless the OP modified the post, I do not see where the OP said what
PMM says:
PMM said:
1. He says that he hasn't been in Canada for 3 years and 8 months.
Rather, the OP's post, as I quoted above, says he has not "lived" in Canada over this period of time.
While it appears obvious the OP probably has been outside Canada for more than 1095 days during the last five years, with the implications I go into detail about above, if the OP has traveled to and from Canada some over the years, that could have an impact on whether there is a FOSS alert for the OP and if there is no FOSS alert, on how it goes at the PoE otherwise.
If, per chance, the OP has somehow been in Canada enough to still be in compliance with the PR RO, that really changes things. Then it really is about going to the CJ hearing and making the case that the OP was resident-in-Canada for at least three of the four years preceding the date of applying. It does not seem likely the OP is in compliance with the PR RO, but if the OP is, the CJ hearing will be about the four years prior to the date of applying for citizenship.
