So I am now faced with a very difficult decision, one that pits my personal interests against my sense of duty and obligation to others.
I’ve been forced to really carefully review my current situation and attempt to determine what is my best course forward, because the decision I make now has potentially long-term consequences for me and for others in the future.
The oldest is my original application to be an immigrant to Canada in the Federal Skilled Worker category. I applied in that because I seemed to be qualified. I don’t think I fit the typical skilled worker model – I wasn’t looking to go to work for an existing company. I’m already established in my field, I’ve written books, I give lectures and talks, I work with companies all over the world. Thus, no matter where I live, I bring my skills and my customers with me. I actually made the decision to apply back in 2006. Had I not waited three years to do so, none of this would have happened, because I’d have been done in 2008, even with the 18 month processing time typical at that time.
But I didn’t – I applied in June 2009. By the time they got around to doing my medical I tested HIV positive and while not an “automatic” failure to qualify for FSW, based upon the rejection I did receive it is for all intents and purposes an automatic failure for anyone planning on immigrating to British Columbia. The attorney I was using at the time basically gave up on me at that point, once I received the follow-up medical request. I hadn’t thought much about this honestly, until my conversation with my current attorney – but it did profoundly impact my willingness to trust anyone else, something I had not seriously thought about until after my conversation with my current attorney on Friday.
I’m the one who found my current attorney. I did so by finding the Companioni decision and then looking through other decisions. There are only a handful of attorneys with serious experience in medical inadmissibility and mine seems to specialize in the HIV cases. I’d been preparing the path to a solid response for quite some time. Being an American I’m used to the idea of buying private insurance – indeed, it’s one of the very first things I did once I moved up here to work, which is quite fortunate because I wouldn’t qualify for personal private insurance any more. I organized a group insurance policy as well and worked with my employer to set up a Personal Health Savings Plan (PHSP), which is a form of “health savings account”. Thus, by the time I started working with my current attorney I’d put together all the fodder necessary to present a strong, credible, and current plan.
Behind all of this is my own fundamental distrust of the very paradigm that one must assume is true in order to create such a strong, credible, and current plan. While I’m sure it marks me as a heretic, I find mounting evidence that the model of pharmaceutical intervention is deeply flawed. I did write up a document to that effect and I even circulated it to my attorney and he did so to the expert who wrote up the report for me. There was some feedback on it, but it was essentially negative – no surprise coming from someone who is deeply plugged into the current paradigm. But the model for medical inadmissibility here doesn’t allow you to refuse the preferred treatment paradigm, no matter what the basis: religious, moral, philosophical or even scientifically based. So while I can (and did) point to papers that say “um, this treatment paradigm doesn’t really work the way we’re telling people it works” (much like the article in the Guardian to which I linked earlier) that isn’t a winning strategy – and I did want to win.
Of course, in parallel with all of this I have the growing relationship with my now husband. I’ve had previous relationships, and I was even married for quite some time, but this time my feeling is I’ve really found something quite special and that feeling has only grown and intensified. When I received my fairness letter in early April 2011 it was actually upsetting, even though I had expected it. I was very grateful for his strength and support and that was the final push and I asked him to marry me. He agreed instantly. We married six weeks later, after a week of actual planning – we literally were at breakfast (Dim Sum) and I said “so, you busy, because if you aren’t how about we get married?” We didn’t get married that morning, but we did pick up our marriage licence. We spent some time online looking at wedding bands and found several we liked at a local jewelry store, which is where we went the next day after he got home from work. After looking at over a dozen different bands we narrowed it down to three. He wanted me to pick, but I said, no, you pick one, and I’ll pick one and then we’ll figure it out from there. We picked the same ring. Even more amazing, they just happened to have two of those rings in stock. Given that usually they have to order these things, it was surprising. I’ll just say that it lent it that magical sense. I contacted a wedding commissioner here, found she was available on the date we wanted (one week from getting the licence) and so we booked with her, made arrangements for two close friends to accompany us. The day was an amazing spring day – sunny, bright, warm. A true rarity in Vancouver in spring. I even won the lottery that day!
The deadline for the initial submission was a Sunday, May 27. My attorney indicated he had asked for an extension, but I’d not heard anything back, so I sent a copy of the document I had written, along with a cover letter saying that my attorney had asked for an extension and I wanted to make sure something was on file. I also indicated that I’d been married, since I’m under an ongoing obligation to do so.
When the marriage certificate came in mid-June, I forwarded a copy to my attorney (although it turns out it was forwarded to my previous attorney, not my new attorney) and to CIC in NYC.
So, we submittted the mitigation plan. My attorney did an excellent job of clearly laying out the issues and pointing to the case law, and my hat is off to him. When I noticed the change on the online CIC tracking system (to “decision made”) I was initially elated, thinking that this meant we were done. But as I read a bit more and considered it a bit further I began to realize that it was most likely a rejection – my FBI clearance letter would have been expired by then, along with my medicals, both of which have a one year expiration date. Thus, if they had decided to move my application forward, they would have ordered new medicals and a new FBI clearance letter. Of course the rejection letter was sent to my attorney. Since I was in NYC – working in the same building as the Canadian Consulate – I tried to get a copy but they refused to even give me a copy. So I had to wait until he returned from vacation to find out what was going on.
I still remember that early conversation and the questions without clear answers. I even went so far to consult with a second attorney about one burning question: is it possible I might be rejected at the border? Nobody really knew. As a foreign national I do not have a legal right to enter Canada – it is discretionary and thus any border officer could look at my information and say “you’re inadmissible”. I know this is not not a rational thought, but I am deeply in love with my spouse. The thought of being forced to live apart is not a pleasant one for me.
So I studied and filed for a Temporary Resident Permit. That’s my second oldest active application. Nobody knew if I was inadmissible, so asking for one would answer the question. There were three possible outcomes:
- I’m not inadmissible and hence do not need a TRP;
- I’m inadmissible and am eligible for a TRP;
- I’m inadmissible and not eligible for a TRP
Of course, after everything that has happened since then I think (1) is the most likely outcome, but (2) is still not entirely unreasonable.
I’d also moved along with my spousal application. That is my third application and I’ve talked about it (and these others) extensively.
The most recent is my work permit renewal. That’s just so I can remain in Canada while we sift through all of this.
Wow… so my situation is this – to move forward with the Judicial Review application I have to make sure my application is withdrawn. That means sending my withdrawal letter via FedEx to them in LA (versus ahem, mailing it to them, a process that looks like it’s led to the loss of that letter). But that raises the likelihood I will have to deal with the temporary inadmissibility issue.
A win on the Judicial Review will send my application back to CIC for reconsideration, which will mean going through the process again: a new medical, a new fairness letter, a new response to the fairness letter, etc. At least another year. Thus, the only “gain” here might be the positive legal decision. But will it move the “state of the case law” forward enough to justify the personal inconvenience.
What I’d do most likely is just withdraw the application once it was returned to CIC. That would make processing the spousal application simpler. Ah, but I’ve been told that the spousal application is all but done – so there’s no reason to try and make it simpler, since it’s already over.
Thus my decision: do I declare a symbolic victory and move on with my life, or do I continue the fight?
Not an easy decision.
- Revisionist History (medicallyinadmissible.com)
- British Columbia and the Optional Nature of Health Care (medicallyinadmissible.com)
- DOJ: Pennsylvania School Must Pay $700,000 to Student Denied Admission Because He’s HIV-Positive (towleroad.com)
- What To Do If You Get a Cease & Desist Letter: Have a Cup of Tea. (elizabethpottsweinstein.com)