Operational Bulletin 425


OB 425

Announcement of the closure of the Buffalo, NY CIC processing office.

One thing that can make the immigration process frustrating for those living through it is that there is such a total lack of control.  The process has profound impact on one’s life and any bump or wrinkle in the process sends jolts of fear through those currently in the middle of the process.

For the past two months the processing time of applications at CPC-M (“Case Processing Centre Mississauga”) has been increasing about 1/2 week per elapsed week.  Thus, when we submitted the sponsored application (in early March) the estimated processing time was 55 days.  By May 14 (9 weeks later) the estimated processing time was 90 days (so an increase of 35 days in a period of 63 days.)  That number hasn’t been updated in two weeks.

Then the other shoe drops and suddenly the backup in Mississauga makes sense – CIC has decided to close Buffalo.  My suspicion (entirely random speculation since I’m just another leaf caught in the maelstrom here) is that this decision was made back in March as part of the new budget.  So the backup would be due to the shifting of processing to other centres – in this case, it seems that the permanent resident processing will be moving to New York City (who already denied me once, so I wasn’t too thrilled to see that change) or to Ottawa.

In the meantime, we sit and wait for the court to make a decision on my judicial review application.  Today marks six weeks since the Registry forwarded the file to the Court for a determination.  I’ve only seen one case in my own (random) study that’s taken this long and it was ultimately rejected.  I’m hoping to avoid the same fate.

Immigration will certainly teach you the meaning of patience – and of what it is like to put your life on hold for several years while the process winds along.  I suppose I should be grateful I’m not one of the pre-2008 people who have recently had their applications withdrawn and sent back to them.  CIC did refund the fees, but if I were one of those people I’d be furious – in at least some cases, their files were finally being considered.

 

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Is it Moot?


In the days leading up to the government’s response there was correspondence from the attorney representing the government advising us that because there was a spousal sponsored application in the mix she would file a “Motion to Strike” and correspondingly ask for an award of costs.

This led to some interesting conversations with my attorney – I had not told him what I was doing with respect to a spousal sponsored application for a couple of reasons: I’ve engaged his services to represent me in the judicial review action, not in a spousal undertaking for example; I’ve been told that the two are not related.

It is a bit frustrating to have a professional (such as a lawyer) treat me as if I were someone who did not understand the subject matter.  I’m not an expert but I’m also not stupid.  I was very careful in my communications with him not to lie, although I certainly did not disclose everything to him either.  Since that time he ask explicitly requested that I do so.  Thus, I’ve sent him a copy of the sponsored spousal application for his records as well as the letter I submitted to the visa office in February when I discovered they had not shown submitted documents in the CAIPS notes (including those materials).

So, with the record now clear, we’re still proceeding on the presumption that my ability to challenge the original finding in my FSW application is not abrogated simply because I might be allowed in under a separate immigration category.  According to the timing published this week Mississauga won’t even open the application until mid-May (75 days as of April 2, 2012).  Maybe we missed something, in which case I have to fix and resubmit the application.  Maybe they won’t allow my spouse to sponsor me (there ARE potential issues in our relationship that might lead to that conclusion).  Most likely, they will approve my sponsor and then forward the entire file to Buffalo.  Odds are it will then take a couple of months for Buffalo to even start processing my file.

However, the government did not file a Motion to Strike.  Instead, they filed a response. The government’s response entirely ignored the substantive points raised in the application.  They did not defend the medical officer’s decision, they did not challenge the separation of powers argument and they did not defend against the Charter challenge.  The argument boiled down to: the applicant is filing under the sponsored spousal family class in which medical inadmissibility is not an issue and thus this court should not hear this case. They did ask for a “small award for costs”.  They also challenged a couple of the items that were submitted because they were not available to the visa officer.  Some of this did not make any sense (like the medical officer’s decision in the previous case) since its presence in front of the visa officer or not seems irrelevant.  But that’s what they argued.

My attorney said that until I’m granted permanent residency in the new class, there is little if anything to support a claim that the issues I raised are moot.  In my conversations with him I said, pointedly, that if I’m granted review I will withdraw my application as a sponsored spouse pending outcome.

Certainly, part of my mental process back in January was that the likelihood of obtaining review was fairly low (20-25%).  At least by initiating the parallel application, if that were the actual outcome I’d be able to at least trim several months off the processing time required (although probably not in time to avoid renewing my work permit, the next challenge I have to face.)  Perhaps it was a bit of panic thinking at the time – the idea of being kicked out, pushed away from my job, my spouse, my dog, my apartment and my home of choice certainly was not a pleasant one.

However, the argument against the government’s position is that simply because there is another possible avenue to explore, there is no guarantee that I would be successful.  For example, I pointed out that if one followed this logic, the court could dismiss any medical inadmissibility case if the government argued they had not pursued an H&C application – even though such an application would most likely fail.  Otherwise, this becomes an argument of relative probabilities.  But my attorney did say that once granted permanent residency in the sponsored spousal class the court would dismiss my challenge in relation to my original federal skilled worker application.

I did point out (although he did not respond to my observation) that even if I’m granted permanent residency in a different class, I’m now bound by a sworn affidavit to eschew using the very provincial medical services in question and thus I could argue that I still have standing, even though I’ve been granted permanent residency because I’m still bound by my prior affidavit.  Thus, the government want’s to “have it’s cake and eat it too” – I’m morally bound by an agreement not to use these services, but the government need not be bound to defending their very right to ask me for said guarantee.

Unless the court buys this argument (that the matter is moot), which does not seem to have support in law, it looks like we will get judicial review.  While certainly not the goal, the spousal sponsored application may actually help us get a day in court – as I’ve said before, I’d still prefer to obtain permanent residency on my own.

One week from today my reply (drafted and filed by my attorney) to the government’s response is due.  Then 6-8 weeks later the court should make its decision on whether or not to grant review.  My attorney thinks it is likely now (and I’ve raised my own worthless estimate to 75%).

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.