Countdown: Six Weeks to Go

Today marks six weeks to go before the hearing date.  While I’m sure the time will fly by (after all, that means we’re over 50% of the way since leave was granted) living it up close and personal is always an interesting experience.  Nothing like waiting months and years for something that is so fundamental to life.

Indeed, I often find myself reflecting upon the whole process, wondering if I would have been far wiser to have never pursued immigration in the first place.  A look over at my spouse (being domestic right now, putting away laundry) assures me that the net outcome really is a good one, but absent that I seriously doubt I’d reach the same conclusion.  Of course, underlying the court battle is my strong desire to prevail “on my own” – to basically not burden my spouse with this ongoing obligation to be responsible for me.  While I don’t expect anything to happen, we never do plan for these sorts of things, do we?

The past week has been a good one overall, though.  I pointed out the observation in my previous post that the PHSP would have overcome the medical officer’s objection to my attorney who thought that was an important point that he would incorporate into his memorandum (the memorandum is due on 18 September).   I’ve also had the opportunity to interact with some other people who have been through the same process as me.  One of them had a hearing yesterday (judgment reserved – but it was only 30 minutes, suggesting there really wasn’t much argument.  Whether that is good or bad remains to be seen).  The other won his case back in 2009 but was ultimately unable to successfully immigrate to Canada (from what I was told, this is because they couldn’t prove something that could only be determined once they had come to Canada.)

I took the past two days off as well.  My spouse and I enjoyed a pair of wonderful days – late summer days, enjoying some time together – a rarity these days.  It has given me a time to reflect and consider the nuances of this process.  One thing I find myself wondering is if much of this “process” is really a mechanism by which Canadian Immigration can enshrine biases and discriminatory practices.  Certainly both cases I learned about have suggested that this might be the case, but of course two cases do not prove a pattern, either.

Ironically, what helped me crystallize this thinking was a news article I read on The Huffington Post.  It was the story of a child with Down’s Syndrome who was denied boarding on an American Airlines flight.  The airline claimed the pilot was concerned about security.  It made me realize that discrimination is so damned hard to prove precisely because it can be disguised in the clothing of “rational process”.  Thus, they agree to allow someone into Canada but only if they can do something prior to granting permission that can only be done after they’ve been admitted to Canada.  “So sorry, you are still not admissible to Canada.”

This passes an initial inspection as “due process” but fails to withstand scrutiny.  What is particularly ironic is that immigration is about encouraging diversity – but only within a very limited range.  There’s nothing wrong with having such a system, but it would seem to be disingenuous to dress it up in the guise of an equitable system.

There is a certain inherent hypocrisy in the system.  While I had hoped that my case might serve to shine a bright light into the dismal innards of the system, the reality seems to be that this isn’t likely.  The system is self-protecting.  In my case, they will point to the fact that I can always enter the system through a different mechanism and thus avoid the possibility of examining the inherent bias in the system itself.  While I can say that this is a shame for the process overall, I have selfish motivations here – I want the process to end.

Six weeks from today I’ll be allowed to watch them argue my fate.  Some time after that I’ll learn the final outcome of my case.


Case now under consideration


As of this morning the case has been sent to the Court for determination.  The docket has an entry that says: “Communication to the Court from the Registry dated 17-APR-2012 re: sent to Court for disposition – A’s reply filed”.

So this means that the filings have been sent to the Court for a decision on the application.  Generally it seems to take 3-4 weeks for the Court to decide.  Thus, we should have a decision on the application by mid-May.  Actually a bit earlier than I had thought might happen.


An unusual entry in the Docket


Sparks St. Headquarters

Image via Wikipedia

I haven’t checked the docket system in a while – after all, I don’t expect anything else to change until the government has responded to the application.  For whatever reason, I looked at it today and was rather surprised to find there was a new entry:  The government has assigned an attorney to this case apparently, because she filed a letter with the Court indicating she was assuming “carriage” of this case.

I found this about two hours ago (as I write this) and I’m still oddly rattled.  Indeed, initially I was floored – I’ve never seen an entry like this one in the dozens of other immigration cases I’ve reviewed on the docketing system.  Of course, I wasn’t specifically looking for this entry either, so I just figured I had not really noted it previously.  So I spent about an hour going back over old cases and none of them indicated an attorney by name taking the case.  Usually the next notation after the application being filed is the response being filed.

I’ve decided to include it as an image; while it can be recognized via OCR, this will prevent the name from being normally indexed (or so I hope – web stuff is getting rather sophisticated these days!)

Docket entry

Docket Entry

This was enough information for me to do some web searching.  This is an attorney with quite an extensive history of handling high profile cases.  She sat on a panel discussion last year discussing medical inadmissibility in the Canadian federal court system.

I’m at a loss as to how to interpret this.  I suspect I may be over thinking it.  So at least for the time being I’ve decided to interpret it as a positive sign – that Justice Canada is taking my application seriously.  Ironically, this may make it more likely that I’m granted leave – since it suggests there are substantive issues to decide.

It does seem likely that the response in this case is going to be a strong one.  There is little doubt that my attorney is going to earn his fee on this case (or perhaps just this added level of attention means he’s already earned it!)

Sponsored Application: Sent

So after spending the past couple of weeks traveling all over (mostly for work) I’ve now ended up at home (just in time to celebrate my birthday with my family!)  My goal had been to submit my application prior to my birthday.   Sunday and Monday were spent going over everything one more time.  I split apart my overview letter into a series of discreet documents.  I went through the checklist to make sure I had everything and to organize things.

The final application was likely a bit over-done.  Every page was inserted into a sheet protector.  These sheet protectors were in turn included in a 3″ binder.  The front of the binder had both our names and pictures on it.  Each critical section of the application had a separate tab, independently labeled to make it easy to find each document.  I also included a complete copy of everything in the application in a separate envelope – no staples, no paperclips, nothing.  Just in case they don’t like the binder approach to things.

Receipts for the fees are included (application fee plus right of permanent residence fee.)  Completed original applications, supplementary materials, original IMM 1017 EFC form (as completed by the DMP) and my original FBI clearance letter (which is printed on a special paper that when copied exposes a watermark saying “unauthorized copy” on it.)

The entire package was 5.2kg (11 lbs).  It was shipped out on Monday March 5, 2012 right at the wire – 4:45 pm (cut-off time.)  It was delivered on Tuesday March 6, 2012 at 10:35 am to the mail room of the Case Processing Centre in Mississauga, ON.

Currently, the CIC website indicates that it takes 55 days before they open a new application after receipt (8 weeks) although that’s certainly subject to change.  But assuming that schedule, they should open the application around May 1.  Hopefully we will hear that the sponsor has been approved by the end of May and the file then transferred to Buffalo, NY.  So, let’s hope they log it in by the middle of June.

In parallel, the judicial review should be moving forward.  Decision on whether to grant review or not would be due in roughly the same time frame: early to mid June.  At this point I’m not expecting review to be granted (it seldom is) and if granted a positive determination seems unlikely (looks like about 20% of review cases result in a determination for the applicant.)  So, 20% chance of being accepted review and a 20% chance of success would yield a 4% chance of success this way.  Not outside the realm of possibility, but not the kinds of odds on which one should base one’s life.

What is the cost of success?

I’ve previously mentioned the seminal Companioni case.  From that case, I was able to locate my current attorney.  I’ve also been doing quite a bit of work lately in New York City (recall that my client is physically located in the same building as the consulate that considered and rejected my application.)  Since Companioni lived in NEw York, I spent some time trying to track them down.

While I think I have, the process was far more challenging than I had initially expected – after all, these days it’s generally quite easy to track someone down.  Even when I found a matching profile on a professional website, I was surprised to find out that the person I identified did not allow direct contact (and this is a business networking website!)  That surprised me.  The same thing for social websites (e.g., Facebook).  As I dug deeper it began to sink in that there might be a high price for success: the rights of privacy disappear once the legal system is involved.  The details of who I am, what I do for a living, where I live, and my medical condition are all spelled out in a legal decision.  If it is unsuccessful, almost no one will take notice – and from my review of judicial review decisions most are unsuccessful.  Then again, most are refugee cases.

Companioni was succesful.  When I pushed my attorney a bit more on Monday about “where they were in the process” he demurred and said that I was pushing into an area of attorney/client privilege.  I’ve since offered up permission for my attorney to pass along contact information, but I’ve not heard anything.  A shame, but I suspect they may prefer their privacy.

I’m not always the sharpest knife in the drawer, but in this case it occurred to me that the reason for these things might very likely be that after the decision was made some people took it upon themselves to make the lives of Companioni and his partner difficult.  I cannot be surprised at such actions, given the extremist views of some people (e.g., Westboro Baptist Church and their actions.)

So now I’m wondering: will the cost of success (however unlikely) be so high that I ultimately decide it was not worth it?  If so, it really challenges me as to the basic nature of justice and the manner in which we execute it these days.  But then again, perhaps that is the goal: to provide us with an outlet that is so expensive regardless of success or failure that we will remain complacent and simply accept the fact that we are excluded.

That leaves me with a rhetorical question to ponder: Does Canada merely present the illusion of equality and tolerance while actively discouraging it?

Finding Others

Flag of British Columbia
I’ve been fortunate to speak with others about this issue at length, including people who have been successful – although against long and difficult odds.

One person with whom I spoke recently had an amazing story that provided me with quite a bit of insight.  For the purposes of this discussion I will call him Alexander. He is an American citizen but his partner is from the EU.  US immigration policy does not recognize same-sex couples, so the partner in such a case must seek to either win the immigration lottery or seek economic immigration (tied to having valuable skills.)  For whatever reason, Alexander’s partner did not qualify for economic immigration. They survived for quite some time by having his partner just leave the US periodically (e.g., by the expiration of the usual 90 day visitor visa granted to people from the EU.)

Of course, that eventually didn’t work ask well, as the US immigration folks eventually do realize that the visits are rather frequent.  So they had to find an acceptable alternative and settled on Canada.

At any rate, Alexander had a highly valuable set of professional skills and had his company transfer him to their BC office (via the NAFTA intra-company transferee category.)  This allowed his partner to come along with him and they started the permanent residency application process.

Much like me, he found out his medical issue after his immigration physical.  Of course, being in BC on a legal long-term work permit, he qualified for BC’s medical service plan, and thus was eligible (prior to PR) to take advantage of the medical services available in BC.  His company also had private insurance and crafted a plan that would ensure the province did not need to pay for his medical costs.

After submitting his proposal, it was rejected by CIC due to the excessive cost rationale. At that point his local attorney seemed a bit out of his zone of comfort, so he worked with another attorney in Toronto (another medical inadmissibility expert) whom I’ve heard others recommend in the past.  They put together an application for judicial review, which was rejected.  Thus, there was no court review of the decision.

At that point he started working on a Temporary Resident Permit (TRP) with the Toronto lawyer.  It was around that point that his attorney said that the filing was strong enough on its own that it would be worth filing again with the additional information.  This time they filed under the provincial nominee program, documented that his skills were in high demand (letters from his employer, for example), ensured that the company’s insurance coverage would apply, started taking the drugs and demonstrating that the insurance was paying for it, obtained a letter from the head of the BC clinic stating that the government was not paying for his meds and with all of this in hand was able to convince the immigration doctor (“DMP”) that while he had a medical condition, it would not be a financial burden on the province.

This time, his application was successful.

The total process required five years and cost around $50,000.

I found the conversation very insightful and oddly comforting – others have done this and been successful at it.

FBI Clearance Letter received


FBI image

Federal Bureau of Investigations

Today I received my FBI clearance letter.  As expected, it indicates that I do not have an arrest record in the United States.

With that I’m just waiting on two documents at this point: two support letters from family members (basically saying they know about us, all in support of our relationship being genuine.)

I’ve also been digging around on my computers and found some very useful material – including chat logs dating back to 2008 – nearly nine months before I even filed for permanent residency the first time around.

Of course, marriage fraud is a serious issue in Canada. I try to look at this objectively, however: most of this fraud is economically driven.  In my case, my work isn’t tied to my location.  So, from an objective perspective, the typical reasons that one enters into an immigration marriage don’t really make much sense here.  Regardless, there are a couple of red flag issues: age difference, income difference and my prior rejection all being the big issues.

I’ve tried to address these issues.  The first two are facts: the question is whether or not they undermine the legitimacy of my relationship with my spouse.  I maintain that they don’t.  First, it’s not as if we jumped into this instantly.  We started talking back in the fall of 2008, and while we bumped into each other on the street in November 2008, it wasn’t anything more than a fleeting encounter.   We didn’t actually meet until early June 2009.

So, finding chat logs and e-mails that substantiate this help demonstrate that there are some “legs” on our relationship.  Then we throw in joint bank statements, our apartment lease, car papers (joint ownership, loan in both our names) and my take is that we have a reasonable argument for a legitimate case.

I’ve read some cases online where people are worried about this as well (one couple had been married for six years and had two children together – to be honest, I cannot fathom how an immigration officer could look at that and think it wasn’t authentic!)  So I recognize that it’s easy to over-analyze these things.

Thus, my approach: step back from it and say “given all the evidence, does this look like a reasonable evolution of a relationship?”

We will find out soon enough.  My hope is to submit this package in early March, when I return from my next trip.