Classic law school case, not classical....please HELP!

[gino007]

I think the reason is rather straightforward - from an administrative perspective, it's quite clear that the presumption of non-compliance with the RO is strong when a PR is applying for a PRTD abroad. Or in more simple terms: IRCC officers processing PRTD requests are (or at least seem to be) more consistently strict about non-compliance and deny PRTD applications more frequently than CBSA officers at ports of entry. It also means that the applicant cannot return to Canada (or at least much less easily) and so less likely to result in long appeals processes while the applicant potentially accrues more of a basis for H&C consideration. (I'd be willing to bet that a far higher percentage of such cases are just dropped by the applicant and not appealed - so cost savings for government).



My impression stated above greatly reinforced by this point here: the officer seems to perceive the process at ports of entry to be much less rigorous and strict and akin to 'sneaking in' (even if it doesn't actually constitute sneaking). And quite probably the officer involved does think the facts don't warrant any leniency and wishes to 'close it off'.

A separate point is whether the officer's statement telling the applicant not to come by land is in any meaningful way 'enforceable.' My guess is not, it's only their preference stated with some vague potential problems referred to as a warning. (A lawyer would probably consider whether this type of warning is permissible - but that's way beyond my knowledge).

Now, whether this opinion or communicating the warning not to cross at a border is 'subjective' or unfair or somehow represents a bias - I have no opinion as don't know the whole story. I would just note that the individual should take scrupulous and detailed notes as close as possible to the time this occurred and - should it come to that - share with a lawyer.

My impression is that even if there is what appears (to the applicant) to be bias, it is very far from that to having something actionable (in an appeal or otherwise) that would help one's case. And certainly not cheap. The power that the officers have to exercise leniency with respect to H&C considerations is a power that requires them to exercise judgment in the face of incomplete or imperfect factual evidence, and where there is judgment, there is no system in the world where personal opinions (positive or negative) do not enter in to some degree.

That does not mean that the judgment exercised (or bias if you prefer) is automatically impermissible and hence a basis to overturn that judgment. (It's also asymmetrical in that if the bias is in favour of the applicant, no-one ever appeals it.)

Anyway - I share in the warning that this does not sound like an easy case and results may not be positive.

I must say there are some points above that I disagree with "It also means that the applicant cannot return to Canada (or at least much less easily) and so less likely to result in long appeals processes while the applicant potentially accrues more of a basis for H&C consideration. (I'd be willing to bet that a far higher percentage of such cases are just dropped by the applicant and not appealed - so cost savings for government)."
The applicant can return to Canada once the PRTD is rejected by just sending a notice to IAD and while IAD is processing the case, the applicant can enter Canada by right. The applicant doesn't need a legal representative to send the appeal notice to IAD which makes it quite simple. The applicant can then add a legal rep at a later stage or can do it from the beginning.

I also disagree that entering Canada either through US or any other border would be easy. CBSA is highly, highly, highly advanced in protecting the borders electronically and physically. It doesn't matter which border you choose to come from. It is all connected to the same system. Yes, maybe there is a difference in what type of officer you get in different borders at different times, but the system is the same. The applicant will definitely, or I should say very highly likely be referred to RO secondary screening at the border and from there it is the story that was discussed above.

 

[gino007]

@cango2017 if you haven't already done so, you may want to get yourself acquainted with the IAD (Immigration Appeal Division) website and form which is going to become handy soon: https://irb.gc.ca/en/making-immigration-appeal/Pages/immapp-bc1.aspx

I believe the important point here is that @cango2017 should decide whether he and his wife are willing to invest financially and emotionally to be separated as taking the case further is only possible by your wife returning to Canada and staying for good. There is really no possible route on the horizon that would help your wife to continue to stay out of Canada and process the citizenship case or keep the PR. I understand that this is very difficult for you. In regard to overcoming a removal order, as I mentioned on the RQ page, it is a real challenge and very difficult. Yet, depending on the merits of your case, you at least have a shot at it if you return and stay in Canada. All the lawyers I talked to told me the same thing.

 

[armoured]

I must say there are some points above that I disagree with ...
The applicant can return to Canada once the PRTD is rejected by just sending a notice to IAD and while IAD is processing the case, the applicant can enter Canada by right.

I don't think this is correct, at least not in all cases:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/prtd-refused-how-to-appeal.578485/

"If you do appeal, and haven’t been in Canada in the last 365 days, IRCC does not have to provide a PRTD for the appeal process."

That was my understanding; if it's incorrect, then please let us know.

I also disagree that entering Canada either through US or any other border would be easy. ... The applicant will definitely, or I should say very highly likely be referred to RO secondary screening at the border and from there it is the story that was discussed above.

First, two different points:
1) I did not say "easy" - I said "more easily." (Actually I said prtd is much less easy than crossing physical border.) Point being, I believe - and the comments by IRCC officer certainly reinforce - that it is easier (comparative) than the PRTD process. (Otherwise the officer wouldn't think doing so amounts to 'sneaking in.' )

2) There is an entirely separate issue with crossing the physical border: if you are a PR ie the status has not been revoked, you will be admitted, even if CBSA is strict or highly efficient or however you wish to name it. Even if they issue the 44(1) report etc., you will be admitted, while you appeal, etc. Sometimes this provides additional arguments for H&C consideration (and logically in some cases that additional will / may prove convincing or decisive).

Sort-of related, I haven't addressed cases where one applies for PRTD and it gets refused and then the applicant travels afterward (but before PR status revoked) to cross border through USA. I don't know of enough evidence to say whether that's significantly different from either case. My understanding is that the PR in this case would be admitted, but I suspect - only a guess - that this would appear less convincing (possibly desparate) to return to Canada only after PRTD has been refused. This is only speculation though.

 

[gino007]

There is something I am not quite sure as I had read it somewhere a while back: once the PRTD is rejected and the notice of appeal is sent to IAD, I am not sure if it is discretionary for IAD to issue a travel document for the applicant to return to Canada or they MUST issue this. The whole purpose here is for the applicant to attend their hearing in person https://irb.gc.ca/en/transparency/pac-binder-nov-2020/Pages/pac5c.aspx?=undefined&wbdisable=true
Maybe some help from @dpenabill ?
The page I sent here says:

Presence of an appellant at the hearing: In a residency obligation appeal, the IAD "may" make an order that the appellant physically appear at the hearing, in which case an officer shall issue a travel document for that purpose: IRPA s. 176(2). Usually, this is as a result of a pre-hearing application made by the appellant. Most appellants attend their hearing by telephone, unless their application to return succeeds (not often allowed by the IAD) or they are otherwise able to enter Canada.

 

[gino007]

With the hearings being done virtually, this may become unnecessary. The result again is that the applicant is better off returning to Canada while the status is still valid with the expired PR card and do what we discussed above.

 

[gino007]

I don't think this is correct, at least not in all cases:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/prtd-refused-how-to-appeal.578485/

"If you do appeal, and haven’t been in Canada in the last 365 days, IRCC does not have to provide a PRTD for the appeal process."

That was my understanding; if it's incorrect, then please let us know.



First, two different points:
1) I did not say "easy" - I said "more easily." (Actually I said prtd is much less easy than crossing physical border.) Point being, I believe - and the comments by IRCC officer certainly reinforce - that it is easier (comparative) than the PRTD process. (Otherwise the officer wouldn't think doing so amounts to 'sneaking in.' )

2) There is an entirely separate issue with crossing the physical border: if you are a PR ie the status has not been revoked, you will be admitted, even if CBSA is strict or highly efficient or however you wish to name it. Even if they issue the 44(1) report etc., you will be admitted, while you appeal, etc. Sometimes this provides additional arguments for H&C consideration (and logically in some cases that additional will / may prove convincing or decisive).

Sort-of related, I haven't addressed cases where one applies for PRTD and it gets refused and then the applicant travels afterward (but before PR status revoked) to cross border through USA. I don't know of enough evidence to say whether that's significantly different from either case. My understanding is that the PR in this case would be admitted, but I suspect - only a guess - that this would appear less convincing (possibly desparate) to return to Canada only after PRTD has been refused. This is only speculation though.

I think you are right on this one from what I sent in my last post. It seems the IAD has discretion over it but it is not longer a right to enter Canada. So yes it is going to be much more difficult. I was wrong on this when I said it the applicant's right.

 

[dpenabill]

@dpenabill and other experienced members:
I have been asking myself about the experience of @cango2017 above about why an official may ask them to get a PRTD and insist on it on a citizenship application. For one thing, getting a PRTD would involve the embassy in their home country and verification of certain docs that can be obtained more easily while the applicant is abroad (like the verification of entry and exit stamps document from the home country). On the other hand, getting a removal order at POE would involve IAD and CBSA. I can not figure out why the official here has insisted on the PRTD...

I addressed the "why" in a previous post. In particular, in addition to what you observe, and perhaps similar to or at least consistent with the administrative perspective proffered by @armoured, I have previously addressed, above, why an official (I suspect a processing agent rather than a citizenship officer) might put pressure on the applicant to apply for a PR TD:

. . . a PR TD application would make decision-making easier for the official handling the citizenship application because the outcome of the PR TD application will include a formal "Residency Determination," meaning a formal and official decision as to whether [OP's wife] still has valid PR status.

I am no expert, so I am hesitant to definitively declare that either a processing agent or citizenship officer handling the citizenship application cannot actually insist this applicant apply for a PR TD. But I nonetheless strongly believe that there is no legal authority for such an official to require this applicant to do so.

That is, so far as I can discern, declining to make an application for a PR TD cannot be a legitimate reason for making a negative decision as to the citizenship application. Which means that the OP's spouse, the PR applying for citizenship but abroad in breach of the RO, can decide whether to return to Canada via the U.S. and take her chances at the PoE rather than apply for a PR TD, and if she is allowed into Canada without being issued a Removal Order, IRCC cannot deny the citizenship application but will have to at least continue processing it.

The risk, in traveling to Canada without a PR TD, is being issued a Removal Order at the border. And, frankly, so far as seen here, it appears there is indeed a real risk, if not an outright probability, that is what will happen.

Leading to . . .

@dpenabill Thank you vey much for the long post timely spent. I got your sense here. But another voice according to the Removal Order and PRTD refusal is that IRCC may not suspend the citizenship application under a subject to removal order, no matter the Removal Order is unenforceable at the moment. Well, I think IRCC should, but in practice the decision can be varied. So we gonna apply PRTD, and refusal should be expected. Then make appealing and come back via US hopefully, staying in until the appeal finalised.

If the "another voice" is that of a reputable Canadian lawyer you trust, that's a better source than me for sure.

Other than that . . .

It is correct that eligibility to take the oath includes the requirement (specified in Section 5(1)(f) in the Citizenship Act) the PR NOT be "under a removal order," and that Section 2(2)(c) provides, in effect, that a person against whom a removal order has been made remains under that order pending an appeal. Which probably means that IRCC could proceed to deny a citizenship application if a Removal Order is issued, even if there is an appeal and the Removal Order is unenforceable, rather than suspend processing pending an appeal.

It otherwise appears, nonetheless, that IRCC can suspend processing pending the appeal of a Removal Order (pursuant to Section 13.1), as it did in @gino007's experience.

We have not seen enough reporting to discern whether IRCC sometimes or typically proceeds to deny the application, or whether it typically suspends processing pending the outcome of the appeal. (If an experienced Canadian lawyer advised that IRCC typically or often will proceed to deny the application despite a pending appeal, that deserves a lot of weight.)

So this is indeed a very significant factor to take into consideration in making the decision to apply for a PR TD rather than travel to Canada and seeing how it goes at the PoE. It is indeed possible that a Removal Order issued at the border will trigger and be grounds for a decision to deny the citizenship application.

This leads to the subsequent discussion between @gino007 and @armoured regarding how "easy" or not so easy it is likely to be in regards to the alternative routes. Perhaps it is my game theory bias, but rather than "easy" or not, I'm inclined to approach this in terms of *risk* and *probabilities* despite how difficult it is (nearing impossible) to reasonably quantify the risks or probabilities.

Chances of a Favourable Decision Regarding PR Status:

Generally it readily appears (albeit it is difficult to verify) that border control officials tend to be more lenient in enforcing the PR RO than visa officers handling PR TD applications. As @armoured referenced, when a PR applies for a PR TD there is in particular the PRESUMPTION the PR does NOT have valid PR status. So, PRs abroad and in breach of the RO who can travel via the U.S. will often attempt to return to Canada that way, rather than applying for a PR TD, because it appears their chances of keeping PR status are better that way.

This comes with all sorts of caveats and is subject to tangled nuances. There are advantages and disadvantages for both approaches.

For purposes of the situation the OP's spouse is in, it is worth focusing on some particulars. Here again, the potential impact of a border issued Removal Order, which might mean the citizenship application is denied despite an appeal, looms large. But even larger than that, it is likely that a big part of why it appears PRs in RO breach tend to find more success at the border compared to applying for a PR TD, is erased in this particular PR's situation, since it is almost certain there is a flag in the PR's GCMS which will significantly elevate the scope of screening upon arrival at the border.

That is, in this particular situation, it is not clear that the probabilities at the border are any better than applying for a PR TD. Indeed, again so far as seen here, even though generally it is near impossible to know the odds, the odds here are probably near equally NOT GOOD either way, either at the PoE or for a PR TD application.

What it comes down to is the OP's spouse will most likely need to appeal and win the appeal just to keep PR status.

Leading to questioning whether it is worth pursuing, given the long odds against success and the costs . . .

 

[dpenabill]

Appeal . . . and Coming to Canada Pending an Appeal:

Is It Worth Pursuing? This is a real question, a serious question.

I believe the important point here is that @cango2017 should decide whether he and his wife are willing to invest financially and emotionally . . . [in what it will likely take to save PR status let alone the citizenship application]

I totally concur with this; indeed I previously posted here, specifically asking whether it will be worth pursuing the effort to keep PR status:

The path ahead does not look easy, even in the best case scenario. Totally a personal choice whether it is worth the effort and investment it will take just to keep PR status, noting there is no guarantee that will result in her keeping PR status let alone becoming a citizen.

That said, the effort to present a H&C case in a PR TD application is probably an effort well worth making. Especially if the OP's spouse has decent H&C reasons to present. A positive decision will solve most of the problems. PR status is for sure saved. The citizenship application should still be viable and, frankly, once she is back in Canada the citizenship application should then proceed to the oath being scheduled . . . perhaps a significant wait but a positive H&C decision in the PR TD application should basically pave the way.

If the PR TD application is denied, that's when it is more difficult to decide if it will be worth the time and effort and cost to pursue an appeal.

Can the PR return to Canada if a PR TD is denied?

If the PR can travel via the U.S., then YES, pending an appeal the PR can travel to Canada via the U.S. and is statutorily entitled to enter Canada.

The applicant can return to Canada once the PRTD is rejected by just sending a notice to IAD and while IAD is processing the case, the applicant can enter Canada by right.

I don't think this is correct, at least not in all cases:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/prtd-refused-how-to-appeal.578485/
"If you do appeal, and haven’t been in Canada in the last 365 days, IRCC does not have to provide a PRTD for the appeal process."

Reminder: there is an important distinction between means of traveling to Canada versus being entitled to enter Canada upon arrival at a Canadian PoE.

If a PR has been in Canada within the year preceding the denial of the PR TD, in conjunction with filing an appeal the PR can also apply for and will almost always be issued a special PR TD so they can travel to Canada pending the appeal. If the PR has not been in Canada within the preceding year, they can still apply for the special PR TD but so far as we have seen reports, that application is typically denied.

But that has no effect if the PR is able to reach a Canadian PoE without relying on commercial transportation coming directly to Canada. In particular, if the PR is able to travel to the U.S., from there the PR can travel to the Canadian border and will be entitled to enter Canada.

Risk of Removal Order When Arriving at PoE Pending Appeal of PR TD Denial:

@cango2017 already posed a question about this and I responded:

. . . if the appeal is already pending it is NOT likely there will be an additional inadmissibility Report proceeding initiated. However, what actually happens in practice can vary, so a Report and Removal Order might happen.

I may have overstated things. The "NOT likely" here derives from typical cases. This probably is NOT a typical case. So it I cannot offer any prognosis about what is likely.

@cango2017 seems to have the impression that the official handling the citizenship application may be personally committed to blocking his wife's chances of becoming a Canadian citizen. If so, and I suppose that is possible, it is also possible that the flag or alert in GCMS will be framed in a way that more or less pushes border officials to issue a Removal Order despite the PR's status is already subject to an appeal. I can vaguely recall a case or three where PRs were appealing multiple decisions to terminate PR status, like a Removal Order and a denied PR TD, but again my recall about this is vague.

If that is what happens, that would likely indicate a particularly strident flag in GCMS, and not bode well in terms of whether IRCC would proceed to deny the citizenship application rather than suspending processing pending the outcome of the appeals.

My personal view, perhaps with some bias, is that regardless the tone or even the content of what was said by the official handling the citizenship application, it is unlikely that that individual is much if at all personally committed to any particular outcome. Even though officials are reading a lot from the way applicants respond, it is rarely useful for applicants to try reading much from the way a bureaucratic official talks to them. Most really are bureaucrats, bureaucratic to the bone.

 

[armoured]

Appeal . . . and Coming to Canada Pending an Appeal:

Is It Worth Pursuing? This is a real question, a serious question.

This may be too prosaic an approach or question to raise, but: it seems to me a very large factor for the individual must and should be whether the applicant (should the applicant travel to a land border and enter that way) is prepared to stay in Canada, with as little travel as possible, for some length of time. An uncertain length of time.

Because (again it seems to me) that any advantage of entering that way may, sooner or later, be nullified if that is not practical. Taking into account work, family, life requirements, etc - that may not be very realistic (but depends on situation).

I cannot get very specific because a lot going on with this case, but just saying 'come to Canada' may not add a lot if the individual can't ... stick it out. And that may be quite hard.

My personal view, perhaps with some bias, is that regardless the tone or even the content of what was said by the official handling the citizenship application, it is unlikely that that individual is much if at all personally committed to any particular outcome.

Not sure if the tone I set in discussing this above implied something else, but I wholly agree with this statement. The individual might have an opinion (or perhaps would be better to say the more neutral 'professional judgment'); but I don't think that necessarily is that meaningful nor represents anything that unusual.

What I was trying to caution on is that what can sound like "bias" to an applicant - or even a strongly stated opinion or possibly a harsh tone - may not at all seem like that to outsiders. And in particular: the hurdles of going from a claim of bias or (proscribed) discrimination to some resolution on the basis of that claim are enormous. You can bring these things up with a lawyer to assess - and don't be surprised if the lawyer thinks that's a dead-end. If officials are expected to exercise professional judgment, sometimes that professional judgment will be unfavourable (and even unpleasant) to applicants.

 

[dpenabill]

. . . it seems to me a very large factor for the individual must and should be whether the applicant (should the applicant travel to a land border and enter that way) is prepared to stay in Canada, with as little travel as possible, for some length of time. An uncertain length of time.

Yep.

What I was trying to caution on is that what can sound like "bias" to an applicant - or even a strongly stated opinion or possibly a harsh tone - may not at all seem like that to outsiders.

Yep.

It is worth emphasizing that individuals in situations like that presented here are confronted with a lot of personal choices, some of which can be very difficult. Factors to consider go well beyond weighing the probabilities.

It makes total sense to me to make the PR TD application, putting the best H&C case forward, and if that is successful, the door is open, wide open, the PR well on their way down the path to saving PR status and even the citizenship application. If the PR TD is denied, they will have time to re-evaluate the situation, their preferences and priorities, their financial state, the prospect of a lengthy separation of family, and all the other considerations personal to them, before deciding whether to appeal, and if they appeal, whether the PR will come to Canada to stay in the meantime.

But it appears to be a tough case. Perhaps a bit like trying to grow English Lavender as a perennial in Timmins, Ontario . . . maybe in Port Dover (which, stretching the flattery some, I once told our host there it seemed like the Mediterranean of Canada . . . yeah, stretching it).

 

[cango2017]

Thank you very much all for sharing personal observations and thoughts on this particular issue. I guess the odds of denial for PRTD is certain, and the IAD doesn't seem positive either under H.C grounds, as which I have been looking through few cases in CanLII. Either way. I guess we should better give up the PR now and apply for Express Entry afterwards. As long as Canada is an immigration land, there's alway a chance to get in. US may be good too, so that our kids can have dural citizenship, but I observed that many American people immigrated to Canada. Why is that?

 

[dpenabill]

Thank you very much all for sharing personal observations and thoughts on this particular issue. I guess the odds of denial for PRTD is certain, and the IAD doesn't seem positive either under H.C grounds, as which I have been looking through few cases in CanLII. Either way. I guess we should better give up the PR now and apply for Express Entry afterwards. As long as Canada is an immigration land, there's alway a chance to get in. US may be good too, so that our kids can have dural citizenship, but I observed that many American people immigrated to Canada. Why is that?

I would not let the odds against getting a PR TD dissuade your wife from trying. Although this depends to some extent on what H&C reasons she has in addition to Covid (Covid should help make the H&C case, and considerably so, but it is not likely to be close to being enough).

It also depends on who is better qualified for Express Entry. If you are, for example, you could make that application while your wife pursues the PR TD.

Canada has just announced that it expects to welcome One and a Half MILLION new Canadians (as in new Permanent Residents) in the next three years. So if your wife is the one who is most qualified for Express Entry, it may indeed be prudent for her to renounce PR status in order to get into the Express Entry queue sooner rather than later. Frankly, however, if you can afford a Canadian lawyer, it would be prudent to review the options with the lawyer before making definitive, binding decisions.

"I observed that many American people immigrated to Canada. Why is that?"​

​

Lots and lots of reasons. If money is the priority, the U.S. has more opportunity. For scores and scores of American expats, it's about everything else.

Then again, for many Canada is simply the better country. For me Canada is truly my home now.

 

[cango2017]

I would not let the odds against getting a PR TD dissuade your wife from trying. Although this depends to some extent on what H&C reasons she has in addition to Covid (Covid should help make the H&C case, and considerably so, but it is not likely to be close to being enough).

It also depends on who is better qualified for Express Entry. If you are, for example, you could make that application while your wife pursues the PR TD.

Canada has just announced that it expects to welcome One and a Half MILLION new Canadians (as in new Permanent Residents) in the next three years. So if your wife is the one who is most qualified for Express Entry, it may indeed be prudent for her to renounce PR status in order to get into the Express Entry queue sooner rather than later. Frankly, however, if you can afford a Canadian lawyer, it would be prudent to review the options with the lawyer before making definitive, binding decisions.

"I observed that many American people immigrated to Canada. Why is that?"​

​

Lots and lots of reasons. If money is the priority, the U.S. has more opportunity. For scores and scores of American expats, it's about everything else.

Then again, for many Canada is simply the better country. For me Canada is truly my home now.

The problem is we don't know any good Canadian lawyer. We are still looking... We already paid 2000 bucks for consulting fee, and we haven't got a damn clear reply after, now even a reply.... I really dont have clue how they could survive in this manner... Hopeless...

 

[canvis2006]

Try the following;

the owner of this forum/website is an immigration lawyer, mr colin singer

Some I’ve heard about:

Gomberg Dalfen
Green and Speigel
Guidy Mamman

 

[steaky]

Try the following;

the owner of this forum/website is an immigration lawyer, mr colin singer

Some I’ve heard about:

Gomberg Dalfen
Green and Speigel
Guidy Mamman

Mr. Richard Kurland is also an immigration lawyer who always appears on TV.