Handbook authored by: Michele Donne Madeline Murray Stephany Codd Anna Barbosa April 2014
“And that is why I swore never to be silent whenever and
wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented. Sometimes we must interfere. When human lives are endangered, when human dignity is in jeopardy, national borders and sensitivities become irrelevant. Wherever men or women are persecuted because of their race, religion, or political views, that place must – at that moment – become the centre of the universe.” Elie Wiesel
Introduction This handbook aims to provide you with all the information needed to understand the case of José Figueroa and to equip you to act in order to fight for justice in his case, and the cases of many others like him. Section 1 introduces you to who José is and tells you more about his story. The next section focuses on when the events in José’s case occurred by providing a timeline of important events. Section 3 looks at what concepts and terms are involved in his case, and gives brief descriptions of each. Section 4 analyzes why this situation is taking place, paying attention to the current immigration and refugee legislation in Canada. Lastly, Section 5 provides you with ideas about how to get involved in the fight for immigrant and refugee rights in Canada.
TABLE OF CONTENTS Section One: Who ............................................................................ 1 Section Two: When ......................................................................... 4 Section Three: What ....................................................................... 7 Section Four: Why ........................................................................ 14 The Securitization of Migration ............................................................................. 14 How is it produced? ............................................................................................. 15 Why is it produced? ............................................................................................. 17 The Anti-Terrorism Act & The Immigration and Refugee Protection Act........ 20 Definition of Terrorism........................................................................................ 22 Definition of Membership in a Terrorist Organization.................................... 25 Discretionary and Arbitrary Decision-Making ................................................ 27 Problems, Contradictions and Implications: the Case Of José Figueroa........... 30 The Case of Oscar Vigil ........................................................................................ 34 Other Issues in the Legal System ....................................................................... 35 Conclusion and Recommendations ........................................................................ 37
Section Five: How......................................................................... 40 What is the We Are José movement? .................................................................... 40 Why is the We Are José Movement important? .................................................. 41 How you can get involved ....................................................................................... 43 Sample Letters ......................................................................................................... 45
Notes and References: .................................................................. 50
Section One: Who This section will introduce you to José Figueroa and tell his story.
Meet José Figueroa. Has has been living in Canada for over 16 years. Originally from El Salvador, he now lives in Langley, B.C., with his wife and three Canadian-born children, the eldest of whom has been diagnosed with Autism. He is a contributing member of society and has strong ties to his community in Langley. Despite all of this, José is facing deportation from Canada. Why? This is his story.
José and his wife came to Canada as refugee claimants in 1997. They came to Canada seeking asylum from the violence and insecurity in El Salvador. During the years of the civil war in El Salvador, José Figueroa was involved in the FMLN (Frente Farabundo Martí para la Liberación Nacional) as a student supporter. He
Â was a university student who believed it was necessary to fight for political change in his country and the only option he had to do so was by joining in the fight against the repressive military regime that was ruling El Salvador at the time.
In the years of the Salvadoran Civil War -1980 until 1992- the country was a dangerous place for anyone who resisted the military regime. The country was polarized by those who supported the government and those who fought against it. The FMLN was an umbrella organization that led the fight against the military regime using a wide variety of tactics, both violent and non-violent. Tehe Reagan administration and its successors were supportive of the military regimes, and this referred to the FMLN as a terrorist organization. In Canada, the representation of the FMLN as a terrorist organization is based on highly biased information circulated by the government of the United States, and the different military regimes that ruled El Salvador during the civil war.
One of the first places where the Salvadoran government decided to show its authoritarian power was inside public universities. Professors and university students were some of the most targeted groups during the civil war. They were arrested and killed for speaking out and fighting against what was an authoritarian, violent military regime. Since the FMLN was fighting against what was considered to be the government at the time, these political and armed organizations were labeled as terrorist groups for resisting the regime. What must be understood is that the military regime was in no way a democratically elected government, and Â
could without doubt be seen as an example of state terrorism. The UN Truth Commission found that 85% of all human rights violations committed during the civil war were committed by members of the state, while only 5% could be attributed to the FMLN. The source of the other 10% of human rights abuses was unknown, implying responsibility on the covert death squads that operated in the country during the civil war. If the death squads were commissioned or led by the government, the conclusion can be made that 95% of human rights abuses are attributable to the government. This information shows how dangerous it was for someone to be a university student during that period. In a country where freedom of speech did not exist, thousands were murdered for speaking against the government. José Figueroa joined the FMLN, knowing the dangers of this affiliation, because he felt strongly about acting to protect human rights and dignity.
José joined the group in the late 1980s when the civil war was occurring in El Salvador. He stood alongside other students for what was their vision of a fair country; one that was not controlled by a government that killed whoever dared to speak out against them. He envisioned a country where people had the right to vote and freely speak their minds. José was standing up for for justice and freedom, the same things he sought when he and his wife sought refuge in Canada, after being targeted for their connections with the FMLN. Fearing for their lives, they made the decision to leave their country.
José and his wife came to Canada in 1997, after realizing that even if the military government was no longer in power, their lives were still in danger. Many individuals with ties to the FMLN were being targeted and threatened. José Figueroa believed that Canada was a country where human rights were upheld and respected. He moved here to start a family with his wife. He never tried to cover up his past as FMLN student leader. In fact, he disclosed this information upon entry into Canada, as proving that he was a member was an important fact to be determined during his refugee claim in order to substantiate fearing for his life and securing the right of living in a just, fair, and democratic country.
Yet, even though his application for permanent residency based on humanitarian and compassionate grounds was approved in principle in 2004, in 2009, an officer from the Canadian Border Services Agency wrote a report that initiated a process of inadmissibility. In 2010, José given a deportation order, on the basis that he was inadmissible to stay in Canada because of his former membership in the FMLN. Although the Canadian Border Services Agency had always known about his membership with the FMLN, José was told that he was inadmissible to Canada 13 years after his arrival.
It has been a long and arduous fight for justice. Despite the fact that the Minister of Public Safety hasn't decided yet on a ministerial exemption, and there are some other pending legal processes, the CBSA decided to move forward with a removal. Fearing for the safety and best interest of his family, José decided to seek
sanctuary in a local church. He has remained in sanctuary as he fights to have his deportation order reversed. José is challenging a decision made on Mach 2013 by a delegate of the Minister of Immigration and awaits a judicial review, scheduled for May 26th, 2014. José is not a terrorist. He is an innocent man, a loving father, and a contributing member of Canadian society. If the federal government deports José, his wife will lose a husband and their children will lose their father. Collectively, their family rights will be violated, the effect of the deportation for the family will be the same as if they are being forcibly divorced. The We Are José movement seeks to bring light to his plight and demand that justice be done for José, and for the hundreds of other migrants who are unfairly categorized as terrorists under the current immigration legislation.
Section Two: When Timeline of Important Events: October 15th, 1979: A coup d’état was carried out by the military regime, deposing President Carlos Humberto Romero. This marks the beginning of the Military Regime in El Salvador. March 24th, 1980: Archbishop Óscar Romero, who spoke out against the military regime, is assassinated by a member of a military-backed death squad while giving a mass. October 10th, 1980: FMLN is formed as a coalition of five guerrilla groups who opposed and resisted the Dictatorial Regime. January 1992: The Civil War ends and the FMLN is recognized as a Representative Political Party in El Salvador.
1997: José Figueroa and his wife immigrate to Canada claiming refugee status. May 2000: Canadian government denies José’s refugee claim. 2002: At the same time of appealing the negative refugee claim, José makes an application to stay in Canada as a resident on Humanitarian & Compassionate grounds based on the fact that he has Canadian-born children, one of whom is Autistic and requires ongoing educational support. 2004: José and his wife receive at the same time a response to the appeal on the negative refugee claim and the residency application based on Humanitarian and Compassionate grounds. The H&C application was approved in principle, which meant that a process for landing had started. January 2009: Mauricio Funes, a member of the FMLN political party, is democratically elected as president of El Salvador. Peter Kent, the Canadian Minister of Foreign Affairs, attends Fune’s ceremony to take the presidential office in San Salvador. May 2010: A deportation order was issued by the Immigration Division of the IRB (Immigration and Refugee Board).
On May 20th, José files a judicial review
application before the federal court of Canada. October 2010: José applies for ministerial relief that would allow him to stay in Canada, based on humanitarian and compassionate considerations and the fact that he is not a threat to the safety of Canada (based on section 34.2 of the IRPA). January 2011: The We Are José campaign is launched in order to put pressure on the Canadian government to reverse the deportation order. March 27th, 2013: A delegate of the Minister of Immigration makes a controversial decision to deny the Humanitarian and Compassionate application that was approved in principle in 2004. 9 years later she reverses that decision and the process to deport José Figueroa is put into motion again. The H&C application for José’s wife, Ivania, is accepted. October 2013: Fearing his imminent deportation and the break-up of his family, José claims sanctuary at Walnut Grove Lutheran Church in Langley, B.C.
October 19th, 2013: We Are José launches a number of solidarity campaigns across Canada. Hundreds come out to rally in support of José, from B.C. to Montreal. October 29th, 2013: A motion to stay the deportation order was granted by the federal court of Canada. On the same day, there were public statements by the minister of public safety that neither Jose or the FMLN are in the list of entities. January 15th, 2014: A judicial review of the decision to deny José’s Humanitarian and Compassionate application was scheduled to occur on this day, but due to “clerical errors” and other bureaucratic delays, the judicial review in the Federal Court is delayed. May 26th, 2014: The judicial review to evaluate whether the decision to deny José’s H&C application will be upheld or reevaluated has been rescheduled to take place on this day.
Section Three: What Many acronyms and new terms will be used in this handbook. To accommodate to those who are new to these terms as well as those experienced in them, a list of definitions and their importance in the context of José’s case is provided in this section.
Asylum Seeker: According to the UNHCR (2014) an asylum-seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated. Usually the asylum seeker then goes through an administrative and legal process to decide who qualifies for international protection. This process is supposed to be rapid, but currently the Canadian system has high rates of backlogs from when Bill C-31 came into effect (CCR, 2013). José and his wife came to Canada in 1997, while filing a refugee claim they defined themselves as refugees. While their claim was being processed, they were considered asylum seekers.
Bill C-31: In 2012, this bill came into effect and changed the way the Immigration and Refugee Protection Act worked. According to the Canadian Council for Refugees (2013), these changes have made it more difficult for non-citizens to apply for refugee status. Under the Government of Canada (2013), this legislation: •
Brings further reforms to the asylum system,
Adds measures to address human smuggling, and
Adds the requirement to include biometric data as part of a temporary resident visa, work permit, and study permit application.
Canadian Border Services Agency (CBSA): The CBSA oversees all activity coming across the border, including peoples. They have first-hand experience with refugees and asylum seekers. According to the CBSA, one grounds for inadmissibility is being part of ‘organized criminality’. It was a CBSA officer who sent the initial report to the Minister of Public Safety, that initiated the process of José being deemed inadmissible because of being affiliated with a terrorist organization. One of the goals of the We Are José Campaign is focused on educating border agents about the historical and political context of origin countries.
Canadian Immigration and Refugee Protection Act of 2002 : Under the Canadian Immigration and Refugee Protection Act of 2002, refugees and immigrants are inadmissible to Canada on security grounds for engaging in terrorism or “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage” in terrorism (IRPA, 29-30). José has been found inadmissible to Canada based on the provisions of this piece of legislation.
Canadian Council for Refugees (CCR): The CCR’s mission statement (2014): “The Canadian Council for Refugees is a national non-profit umbrella organization
committed to the rights and protection of refugees and other vulnerable migrants in Canada and around the world and to the settlement of refugees and immigrants in Canada.” Made-up of citizens, non-citizens and academics, the CCR works hard to combine all their strengths to fight and together create a universal voice in support of the just treatment of refugees and non-citizens in Canada.
Deportation: Is the act of the Canadian Government and CBSA removing noncitizens from within the Canadian borders to their home country. If an application for refugee status or Permanent Residence is declined, migrants can be forcefully removed. In José’s case, they have deemed him inadmissible because of his alleged terrorist associations and are trying to remove him and send him back to El Salvador.
Inadmissibility: The Government of Canada (2013) has stated some broad reasons to deny a person the right to enter or remain in Canada. These include: •
You are a security risk,
You have committed human or international rights violations,
You have been convicted of a crime, or have committed an act outside Canada that would be a crime,
You have ties to organized crime,
You have a serious health problem,
You have a serious financial problem,
You lied in your application or in an interview,
You do not meet the conditions in Canada’s immigration law, or
One of your family members is not allowed into Canada
Judicial Review: The courts of law have the power to review the actions of the executive and legislative branches, and invalidate the act if they believe it is contradictory to the constitution. The decision made by the executive or legislative branches would be deemed invalid by the judiciary. The process of application is
very thorough. The application for review must be issued within 15 days from the date the decision was made. Within the 15 days the application will be issued by the Federal Court. The applicant needs to make sure they have all the proper documentation with them at the proceedings and be prepared to state their case and show their arguments (The Law Society of Upper Canada, 2012). A judicial review of José’s case is currently scheduled for May 26th, 2014.
Permanent Residency: According to the Government of Canada, a permanent resident is someone who has been given permanent resident status by Citizenship and Immigration Canada, but is not yet considered a Canadian Citizen. Being a refugee in Canada does not mean you get permanent residence status. The Immigration and Refugee Board must first approve your claim and accept your application for permanent residency (Government of Canada, 2013 ). As a permanent resident you are not allowed to vote or run for any political party.
Refugee: Is a person who has been displaced or have left their countries because of the threat or discrimination they feel in the origin country. José first applied for refugee status in 1997.
Sanctuary: Is a place someone can find refuge or safety, in times of trouble. It has usually been identified as either a church or another holy place. In Canada, sanctuary is often offered as a last resort, to those individuals who the church believes are at a risk of serious harm if they were to return to their home country. Not all churches are required to agree or participate in proving sanctuary (Antelo, 2013). José is currently living in sanctuary.
Terrorism: This term is drawn from Bill C-36, or Canada’s Anti-Terrorism Act. According to this, terrorism can be defined as “ an act or omission committed inside or outside Canada for political, religious or ideological purpose or cause with an intention to either: intimidate the public with regard to security, including its
economic security, or to compel a person, government or national or international organization to do or refrain from doing any act, and with an intent to: cause death or serious bodily harm, endanger life, cause a serious risk to the health or safety of the public OR cause serious interference with an essential service, facility or system” (Canadian Centre for Policy Alternatives, 2001, 3)
The Canadian Charter of Rights, section 15 Equality Rights: Every individual is equal before and under the law and has the right to equal protection and equal benefit under the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. It recognizes that every individual is equal before and under the law... therefore everyone including immigrants and refugees are entitled to the same rights. (The Canadian Charter of Rights and Freedoms, 2013, 15).
The Universal Declaration of Human Rights: Article 13 ·
(1) Everyone has the right for freedom of movement and residence within the borders of each state.
Article 15 ·
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality (The Universal Declaration of Human Rights, 2014, 13,15).
Similar Cases to José’s José’s case of being deemed inadmissible on the charge of terrorism is not an isolated case, nor is it the first or last of its kind. The Canadian Government continues to use this charge against non-citizen individuals to continue their restrictive and oppressive immigration measures. It is important to look at cases
similar to José’s in order to understand the continued threat the Canadian Government puts on individuals and the ease at which these people can be labeled a terrorist and deemed deportable. In order to defend themselves against deportation, they must wait months or even years to share their story and gain the respect of authorities, just to be heard as political beings. During these moments many are forced to take sanctuary in churches or safe havens.
Those non-citizens who cannot achieve sanctuary are often times held in immigration detention centers until they are deported. Those held in detention centres often wait long periods of time before given the right to be informed of the status of their case (Pratt, 2005). One case that directly relates to the FMLN was that of Eugenio Chicas, who was a Salvadoran judge and former FMLN member invited to a conference in Ottawa. He was detained at the Canadian border for 24 hours because of his affiliation with the FMLN Government. Due to the high profile nature of his case, within 24 hours the border officials realized the error they had made and apologized to Judge Chicas. His case shows the ease at which mistakes can be made due to misinformation and the large discretionary power given to border officials. Chicas’ membership with the FMLN was waived by the Canadian Government but yet there has still been no steps forward in José’s case. This case has set precedent for the waiving of one’s membership with the FMLN. If one individual’s membership with the can be waived, it needs to be done for José as well, yet he is still treated with hostility and disrespect.
Another similar case to José’s is that of Muhsen Agraira, a Libyan who is being deemed deportable because of his connections with the organization that has been deemed a terrorist organization, the ‘Libyan National Salvation Front’ (LNSF). Muhsen has been in Canada since 1997 and was deemed inadmissible on security grounds in 2002. He then promptly applied for ministerial relief. According to the court, in this case they followed the guidelines set out by the CIC and CBSA and he was still deemed inadmissible. His application for ministerial relief was then rejected in 2009 (Supreme Court of Canada, 2013). Agraia launched a judicial review of this decision, which was passed initially but then rescinded by the minister. Muhsen again made an appeal in 2013, to the Supreme Court of Canada, which was rejected on national security grounds.
The LNSF is now the National Front Party (NFP) and they are in opposition to the Gaddafi regime. They are a progressive liberal party that stands for democracy. Muhsen and José have both been deemed inadmissible to Canada because of their past affiliations with organizations that are now government parties. In the next section, the reasons why José and many others like him are being considered inadmissible to Canada will be discussed.
Section Four: Why This section will explore the why’s behind José Figueroa’s case. To do this, three questions will be answered: 1. What is meant by the “securitization” of migration and how is this connected to José’s case? 2. What laws govern immigration in Canada and why is José considered inadmissible under this legislation? 3. What problems and contradictions does José’s case shed light on and what are the implications for immigrants and refugee rights in Canada?
The Securitization of Migration In order to fully understand José’s plight, we must first understand the context in which José’s case is playing out. In order to explore why José is at risk of being deported, the changing nature of immigration policy in Canada, the problematic nature of the existing legislation, and the connections that these issues have with the case of José Figueroa will be discussed. The history of immigration policy in Canada has always included mechanisms to distinguish between desired and undesired classes of migrants.1 In the past, immigration policy and discourse have been used to separate those immigrants who are believed to be able to bolster the Canadian economy from those immigrants who are seen as threats to the cultural, economic and political vitality of Canada.2 In recent years, there has been a shift towards greater securitization of migration. This means that the threat immigrants are seen as embodying has shifted from taking away jobs to taking away lives.3 As migration becomes increasingly securitized, immigrants are more often being represented as a threat to the security of Canada.
Kim Rygiel, in her award-winning book Globalizing Citizenship, explains that by looking at migration through a national security lens, “certain bodies are perceived as threatening, disruptive, and risky and therefore in need of being securitized, regulated and controlled”. 4 Using and leveraging this perceived threat as justification, Canadian immigration policy has become a mechanism of exclusion that applies tighter immigration controls and citizenship policies preemptively and selectively to certain groups of migrants.5 José represents just one of these migrants who get caught up in the injustices of the securitized, strict and selective immigration policy in Canada. These individuals are pushed out of the boundaries of citizenship or even the physical boundaries of the Canadian nation, while their calls for justice are ignored. Prior to analyzing the particulars of Canadian immigration policy and law, how and why the securitization of migration has emerged will be explored.
How is it produced? As migrants’ mobility has become increasingly constricted, the ease and speed at which powerful words and discourses travel across and between borders has expanded. The words “risk” and “security” began to enter into the discourses surrounding migration even before the events of September 11, 2001, but it wasn’t until after these events that the securitization of migration transformed the migration landscape.6 The positioning of migrants as a dangerous security threat
to nations in the global North can be seen as the outcome of the powerful act of the production of truth via the construction and functioning of a discourse. 7 Michel Foucault expands on this notion by asserting that “the creation of knowledge and truth through a discourse is an exercise of power”, inasmuch as it is this knowledge and truth that then informs, produces, and is subsequently reaffirmed through government policies and laws. 8
Indeed, in the case of the securitization of migration, it is the exercising of power by the Canadian government, Citizenship and Immigration Canada, the Canadian Border Services Agency, and national media that has resulted in the discourse that has transformed migrants from being portrayed as potential voting citizens to a threatening and dangerous “other”.9 By locating terrorism almost exclusively in the legislation regarding immigration, these agencies have institutionalized in the law the migrant-as-a-threat discourse.10 This rapid reconfiguration of the lines of inclusion and exclusion aligns with the common feature of neoliberal ideology that creates discourses that transform those who were once seen as victims, into victimizers, individualizing blame rather than understanding the deeply flawed nature of contemporary economic and political systems and structures.11
Why is it produced? Maggie Ibrahim asserts that the migrant-as-a-threat discourse is an extremely powerful one, that undermines migrant’s civil and human rights while privileging the rights of Canadian citizens, (re)actualizes and reifies a form of “New Racism” which uses “cultural difference as a criterion for exclusion”, and allows global powers to retain control over the existing social and productive relations that make up the capitalist world order.12 While it is clear that migrants, especially those journeying from countries in the global South, are at the losing end of this discourse, it is also important to understand why it is produced and who stands to win from the production and dissemination of this discourse.
Those who derive power from their position governing and maintaining the working of the neoliberal-capitalist world system are greatly threatened by migration and the movement of workers, ideas, and capital between the global South and North.13 Migration tends to blur the boundaries between the North and the South, rendering the economic and political geography increasingly fluid. By producing and disseminating discourses that place migrants as security threats to the host country, thus influencing host country’s anti-immigration policies, global powers are grasping to maintain control over the capitalist world system by ensuring that the economic, geographic, social and political boundaries between the core and the periphery are maintained. 14 Indeed, the capitalist, neoliberal world system effectively depends on the separation and distinction between core and periphery.15 Thus, those who stand to win from the securitization of migration
are those who occupy powerful and influential positions in the core of the current capitalist world order.
Nandita Sharma and Kim Rygiel also draw links between the processes of globalization and securitization. The liberalized, globalized economic system requires open and fluid borders that enable the free movement of goods, information and services across the globe.16 Contrastingly, the state-centric system of nationhood and national security requires fixed borders and well-defined populations.17 This paradox generates multiple tensions that cause national governments to try to assert the sovereignty they must give up as part of a globalized economy, by exercising strict control over who may or may not enter their borders and call themselves citizens. In an increasingly globalized world, nation states are attempting to uphold and justify the architecture of the system of national sovereign states by enforcing their rights to determine who can enter their borders and what conditions will be imposed upon those who enter.18
Barry Hindess proposes a useful method of understanding the contradiction between the practice of opening borders for the movement of goods and services while closing borders for movement of people. He states that both processes are “parts of the one regime of population control – in fact, of a broadly liberal international regime”.19 Thus, we can see that the securitization of migration is also a method for nation states to attempt to control their populations, in response to the erosion of their control over their economies.
Although the securitization of migration has diverse and far-ranging implications, one impact that is central to the case of José Figueroa is that the discourse of securitization privileges the security of the state and its citizens at the expense of the human security of migrants.20 Human security is a concept that places the individual, rather than the state, as the focus of security. It focuses on the protection of individuals’ human rights as well as their entitlements to a high quality of life and freedom from fear.21 In order to “protect” the security of Canada and Canadian citizens, José and many others like him must face the conditions of tangible human insecurity.22 They are being denied the social, political and material rights of citizenship, discriminated against, disempowered, and deported.23 How can it be that our rights as Canadian citizens supersede José’s fundamental human rights to liberty and security of person, and to freedom of opinion, expression and association?
It is clear that through the securitization lens, the principles of security and human rights are applied selectively and mediated by citizenship, race, political affiliation, and other markers of difference. It is an oppressive framework that results in the control, exclusion and oppression of those who are positioned at the intersection of various axes of oppression: class, race, gender, sexuality, religion, etc. In the next section, we will look at how the securitization agenda is present within immigration law in Canada, and how this framework is employed in the legislation to authorize and justify state actions against immigrants that would be
considered undemocratic, unconstitutional and unjust if performed against citizens.24 In an analysis of the Anti-Terrorism Act and the Immigration and Refugee Protection Act, pay close attention to how the law is designed not to protect us from the “enemy” within our borders, but to produce this enemy within our borders and justify their swift removal.25
The Anti-Terrorism Act & The Immigrant and Refugee Protection Act In the months following the tragic events of 9/11, the Canadian government passed two pieces of legislation that were designed to give the federal government an enhanced capacity to protect the security of Canada.26 In 2001, the Anti-Terrorism Act (also known as Bill-36) was passed, followed soon after by the Immigration and Refugee Protection Act (IRPA) in June 2002.27 The AntiTerrorism Act amends 10 different statutes and ratifies 2 different UN conventions on the financing of international terrorism, toughens penalties for those suspected of committing a terrorist act, and reinstates preventive and investigative hearings.28 The naming of the Immigration and Refugee Protection Act is ironic, as the legislation does more to protect citizens’ rights and security than to protect immigrant and refugee rights.29 The changes introduced in the IRPA move in two directions. On one hand, it caters to market considerations by facilitating the easy admission of skilled, highly educated migrants into Canada.30 On the other, it
aligns with the security agenda by restricting the ability of other migrants to enter Canada and broadening the grounds for excluding certain groups of migrants entirely.31
To do this, the IRPA broadens the ground for criminal inadmissibility, restricts access to rights for those who fall in more serious criminal categories and introduces secretive security certificate procedures that will result in the detainment and deportation of non-citizens based on very low standards of proof.32 In this way, the IRPA “denies access to justice to those most in need of fair and proper decisions, removes existing fair decision-making and accountability in matters of deportation and sponsorship, removes existing procedures that ensure a full consideration of circumstances and a proper balancing of interests, and gives immigration officers broad powers to determine inadmissibility”.33 Many of these provisions have been criticized as being unconstitutional. The changes introduced in the IRPA significantly increase the risk of institutionalizing religious and racial profiling, and compromise the international reputation of Canada as a humanitarian nation.34 In the next section, we will look closer at the section of the IRPA under which José Figueroa has been found inadmissible, Section 34.1
Definition of Terrorism Under Section 34.1 of the IRPA, refugees and immigrants are inadmissible to Canada on security grounds for engaging in terrorism or “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage” in terrorism.35 Nowhere in the IRPA are the terms “terrorism”, “member”, or “reasonable grounds” defined and operationalized, instead, the IRPA draws on the definition of terrorism in Canada’s Anti-Terrorism Act.36 According to Bill C-36, terrorism can be defined as “an act or omission committed inside or outside Canada for political, religious or ideological purpose or cause with an intention to either: intimidate the public with regard to security, including its economic security, or to compel a person, government or national or international organization to do or refrain from doing any act, and with an intent to: cause death or serious bodily harm, endanger life, cause a serious risk to the health or safety of the public OR cause serious interference with an essential service, facility or system”.37
The attempt to define terrorism in a legal context is an unsuccessful one, as any definition of terrorism will be based on a political position and situated within a specific cultural, social and tactical context.38 The above definition has been argued to be so general and wide reaching as to be unconstitutionally vague. The unconstitutional nature of using such an undefined term to deport non-citizens has been argued in the Federal Court of Canada in various cases, most notably Suresh v. Canada and Ahani v. Canada. The Supreme Court refused to find the term
“terrorism” unconstitutionally vague. Mr. Justice Denault, a member of the Court proceeding over the Ahani v. Canada case, stated this about the statutory interpretation of terrorism: In my view, since Parliament has decided not to define these terms, it is not incumbent upon this Court to define them ... I do not share the view that the word must be narrowly interpreted. I am rather of the view that it must receive a broad and unrestricted interpretation … I agree with counsel for the Respondent that the word is not capable of a legal definition that would be neutral and non-discriminatory in its application, I am still of the opinion that the word must receive an unrestrictive interpretation.39 Considering the fact that in José’s case, the vague definition of terrorism present in Canadian immigration law is endangering his human security and the security of his family, this statement is unsatisfactory and unsettling. The Federal Court should not be content with employing a broad and unrestricted interpretation of the term terrorism.
A “broad and unrestricted” interpretation of the concept of terrorism, combined with the extremely low standard of proof necessary to accuse noncitizens of terrorism, could clearly capture those migrants who, like José, pose no real threat to the security of Canada. It draws “no clear distinction between armed struggles against repressive regimes and violent actions aimed against civilians”.40 Legitimate political dissent is thus often caught in this wide definition of terrorism. To illustrate the insufficiencies of this definition of terrorism, consider this: under
the IRPA, Nelson Mandela would be considered a terrorist and would be inadmissible for entry into Canada.41 Although he is a Nobel laureate and an honorary Canadian citizen, his membership and involvement in the African National Congress (ANC), which sometimes resorted to violence to resist a repressive regime, would constitute membership in a terrorist organization.42 By equating violent struggles against repressive military regimes with terrorism, Canadian immigration law blatantly disregards the social and political realities that must be considered when working with immigrants who are journeying from countries with diverse histories and political circumstances.
Lastly, the expansive definition of terrorism in the IRPA treats all suspected “terrorists” with the same severity, without consideration for the time that has passed since they allegedly were involved with a terrorist organization, the years they have since spent in Canada, the strength of their social ties, their positive contributions to Canadian society, or the devastating impact their removal would have on Canadian born family members.43 It is not acceptable that immigration law, as it currently stands, does not include provisions that consider the importance of these factors when making decisions about who is permitted to remain in Canada.
Definition of Membership in a Terrorist Organization Just as the definition of terrorism is far too broad, the definition of membership in a terrorist organization is also inadequate and poses a danger to many immigrants. It is important to note that under the Anti-Terrorism Act, past, present, or suspected future membership in a terrorist organization is not considered criminal activity.44 Citizens of Canada are not criminalized for their membership in any organization, only their direct involvement in terrorist actions. In the IRPA, however, a non-citizen can be deemed a threat to national security and thus inadmissible to Canada if they were or are considered a member of a terrorist organization. This draws attention to the disparity in the treatment of citizens versus non-citizens in Canadian immigration law.45 If José were a citizen, his past membership in the FMLN would not be considered a crime and he would not be accused of being a terrorist. In addition to the injustice in the differential treatment of citizens and non-citizens under the law, there are other problems with criminalizing membership what are deemed “terrorist” organizations.
In the IRPA, the grounds on which an individual is considered a “member” of a terrorist organization are extremely broad, regarding an individual who has participated in violent action with the same severity as a driver or bookkeeper for an organization. This problem of criminalizing membership in an alleged terrorist organization is doubly problematic considering that the reality of many organizations involved in liberation struggles in migrant-sending countries is that their tactics are multi-faceted, involving both violent and nonviolent activities.46
The concept of membership as it exists in the IRPA does not distinguish between membership in organizations for the purpose of participating in their violent activities and the myriad of other cultural, economic and political reasons that an individual might become involved in a certain branch of an organization.47
As a result, in Canadian immigration law, the interpretation of membership has at times included “associates, sympathizers, supporters and fellow travelers”.48 This broad interpretation can put individuals in jeopardy of being accused of terrorism simply for belonging to a certain ethnic community or being a supporter of the political liberation of their peoples.49 The Canadian Council for Refugees states that the “use of the concept of membership for finding applicants inadmissible runs counter to fundamental Canadian values, namely freedom of association and the requirement that people only be penalized for acts or omissions for which they themselves are responsible”.50 The Maytree Foundation, a leader in immigration research and advocacy in Canada, recommends that either the concept of membership be more succinctly defined, or it should be completely removed as a condition for inadmissibility in the IRPA.
Discretionary and Arbitrary Decision-Making The absence of clear and just definitions of terrorism, terrorist organization, membership and “reasonable grounds to believe” in the Canadian immigration legislation confers an unreasonable and perhaps undemocratic amount of discretionary power on governmental authorities.51 Discretion is commonly seen as existing in the absence of law and governance, however, in the case of immigration law, discretion can be seen as a form of governance.52 In the absence of clear legal definitions of these concepts, immigration officials, judges and other government authorities use their discretion to make decisions that may potentially jeopardize the life, liberty and security of immigrants.53 Seen together, these decisions work to shape a new form of governance in which security concerns and the current political climate are transformed into exclusionary and discriminatory immigration law and practice.54
Under the IRPA, immigration officials at the Canadian Border Services Agency (CBSA) are given power to punitively or preventively detain immigrants who they suspect may be terrorists. They are also able to set in motion the process of determining if an immigrant is inadmissible to Canada through preparing a report and submitting it for review to a delegate of the Minister. The decisions of CBSA officers to detain or deport migrants are subject to a significant amount of discretionary power. These decisions are subject to an extremely low standard of proof. Unlike the standard of proof necessary for criminal proceedings, which is “beyond a reasonable doubt”, border officials only need to have “reasonable
grounds to believe” that an immigrant may fall under the category of inadmissibility in order to take action against them. CBSA officers also refer to the official list of terrorist organizations published by the Government of Canada under the Anti-Terrorism Act to aid in their decision-making. Even the creation of this list, however, has been identified as a highly partisan exercise that is subject to the shifting economic and political interests of the governing party.55 It is disturbing that under the current system, the power to label another person as a terrorist is held by a small number of individuals. These individuals are usually not elected, and therefore are not accountable to the public and are able to make decisions in conditions of relative secrecy with little oversight.56
This use of discretionary power in immigration law and practice is closely related to the securitization of migration. It has been noted that in a climate of fear, discretionary powers are more likely to be used, less likely to be questioned, and most likely manifestations of discrimination.57 Additionally, the extent of this discretionary power also influences the lived experience of immigrants and their perceptions and experiences of their own human security. Due to the fact that CBSA officers and other immigration officials are given the discretionary power under the IRPA to investigate, detain and deport immigrants, they also are given the power to influence immigrant’s perceptions of how vulnerable they are, how safe they are and how secure their family is.58 Immigrants’ perceptions and experiences of human security (or lack thereof) have serious implications not only
for their future in Canada but also for their social, economic, physical, and emotional well being while in Canada.
Once an individual is labeled as inadmissible into Canada, their options for recourse are limited. One option is to begin the process for a judicial review, and the other lies in the granting of a Minister’s exemption on humanitarian and compassionate grounds. Specifically in the case of an application for a Minister’s exemption, the fate of an individual is left to the Minister of Citizenship and Immigration’s discretion. Indeed, many of the other provisions in the IRPA rely solely on the discretionary powers of the Minister.59 This leaves refugee claimants and immigrants vulnerable to the “particular predilections of particular ministers at particular historical junctures”.60 This problem is amplified by the fact that judicial reviews, which are important checks on the discretionary power of adjudicators and judges, are hardly ever undertaken in cases of immigration law.61
The lack of judicial oversight in immigration law is unsettling, especially in light of the arbitrariness of decisions made with discretionary power. Those who work in the area of refugee and immigrant rights point to the arbitrariness of the decisions made by CBSA officers and the Minister, stating that there have been many seemingly identical cases where one person was granted the opportunity to remain in Canada while the other was ordered to leave.62 These decisions often have little to do with the actual security threat that an individual may pose to Canada, and much to do with the arbitrary enforcement of the law. As in José’s
case, decisions made about inadmissibility can sometimes occur decades after the supposed terrorist membership occurred and years after the immigrant has arrived in Canada.63 Surely there is a measure of arbitrariness involved when an inadmissibility hearing is put into motion a decade after the individual arrived in Canada and fully disclosed their membership in a certain group. There is demonstrable inconsistency in the decision-making processes that, when taken together with the potential influence of systemic discrimination against foreigners and unskilled workers, supports the notion that a transparent oversight and review process is needed.64 In the next section, the problems, contradictions and implications of the issues of securitization and the IRPA that are specific to José’s case will be discussed.
Problems, Contradictions and Implications: the Case Of José Figueroa The securitization of migration, the broad definitions of terrorism in Section 34.1 of the IRPA, and the corresponding potential for unchecked discretionary power are all issues that are at play in José Figueroa’s case. Firstly, there are numerous issues brought to light by the fact that under the IRPA, José is being accused of membership in a terrorist organization. José supported the FMLN while in university in El Salvador, his activities going no further than joining a non-violent student union that openly supported the FMLN. At this time, El Salvador was being
ruled by a violent, authoritarian regime that used terror to intimidate and restrain citizens.65 The military regime that was in power supported death squads, who massacred citizens and assassinated prominent individuals who resisted the regime, notably Archbishop Oscar Romero. The University of El Salvador was also a notable site of violent oppression, as the faculty and students were routinely accused of being communists, ordered to vacate the campus with their hands on their head, and beaten if they resisted the military-backed campus police.66 According to the Commission on the Truth for El Salvador, only 5% of the violations of human rights that took place during the civil war can be attributed to the FMLN, while 85% were committed by the illegitimate military government.67
The definition of terrorism present in the IRPA does not account for situations in which the ruling power in a country is involved in terrorism. In the face of this brutal regime, José felt that he, like thousands of other Salvadorean youth, had to take a stand and oppose this use of violence and terror. Another important consideration is the fact that the FMLN is not listed on Canada’s list of terrorist entities. In fact, the FMLN is now the democratically elected governing party of El Salvador with whom the Canadian government has strong diplomatic relations. In this context, how is it that José is considered a terrorist for his non-violent membership in this organization nearly 30 years ago? There are clear contradictions in the way that the Canadian government approaches the FMLN, leaving room for speculation that José’s deportation has more to do with a
discriminatory, arbitrary interpretation of the law than with protecting the security of Canadians.
The other indication of arbitrary and overly discretionary decision making in José’s case is that José was fully open about his involvement in the FMLN upon entry into Canada in 1997. He in no way tried to hide this connection, as the violent action taken against FMLN members post-civil war was in fact the reason that he was seeking asylum as a refugee claimant with his wife in Canada. There was no mention of his membership in the FMLN being a problem or grounds for inadmissibility until 2010. Thirteen years went by before this issue was ever brought up. Did José suddenly become more of a danger to the security of Canada 13 years after his entry? Was he considered more of a terrorist as time went on, as he started a family, acquired employment, and developed strong ties to his communities in Canada? Surely this is not the case. The issue at hand here is that he was not considered a threat to the security of Canada upon entry, but 13 years later, an immigration officer decided to arbitrarily take action against him in order to use the power that is given to them under the IRPA.
Another illustration of the arbitrary nature of the decision-making in José’s case is that in 2004, at the same time that José was being questioned by a CBSA officer about his involvement in the FMLN, the officer was also investigating another former FMLN member, Salvador Montoya. Shortly after, Salvador was issued a deportation order, however, José was not. The issue of membership in the
FMLN was not pursued in José’s case for another 6 years. Why? José can only speculate about why the officer decided to pursue this lead so many years later. Whether one believes he should be considered a terrorist or not, his case exposes serious shortcomings of the entire Canadian Border Services Agency. If he is considered a terrorist, the CBSA fell short by letting him live in the country for 13 years before taking any action to remove him. If he is not considered a terrorist, he is an innocent man who is getting caught up in the unjust and overly broad definition of terrorism in Canadian immigration legislation. Either way, his case reveals glaring flaws in the ideologies and operations of border control agencies.
Whatever the outcome in his case, it has extremely important implications for the other 160,000 Salvadorans currently living in Canada, many of whom were former members of the FMLN. If José’s deportation order is not revoked, these individuals will have to live in constant fear that their past ties to this organization will one day be used to eject them from their new home in Canada, with no consideration for the years that they have spent residing in Canada, for the security and safety of their families (some members who are Canadian born), for the strengths of the ties they have made with their communities, or for the depth of their contributions to the Canadian economy and culture.
The Case of Oscar Vigil One such individual is Oscar Vigil. Oscar Vigil came to Canada as a refugee in 2001, fearing for his safety after receiving numerous death threats because of his connections with the FMLN. His connections to the FMLN did not involve any violent activities. Both Oscar and his wife, Carolina, worked as journalists in El Salvador. Since entering Canada in 2001, Oscar and his wife have started a family in Canada and made valuable contributions to Canadian society. Oscar has contributed his journalistic talent to various Spanish-language publications, as well as serving as Executive Director of the Canadian Hispanic Congress and Co-chair of the Toronto Working Group of the Canadian Centre for International Justice.68 Carolina has invested her time in local refugee protection centres that offer services and shelter to refugee women and children.
Despite these valuable contributions and demonstrated commitment to human rights, Oscar has been deemed inadmissible to Canada and is facing deportation. This inadmissibility decision contradicts previous CBSA assessments, which concluded that he does not constitute a danger to Canadian society and that he may face cruel and unusual treatment if forced to return to El Salvador and thus should not be deported.69 He applied for an exemption on the basis of humanitarian and compassionate grounds, but was recently rejected. Oscar’s case is extremely similar to José’s, and interestingly enough was also presided over by immigration case officer Karine Roy-Tremblay (Behrens, 2014). Cases like Oscar’s
will continue to emerge if a precedent for just treatment of former FMLN members is not set in José’s case.
Other Issues in the Legal System Beyond the issues that José’s case brings up with the existing immigration and refugee legislation, his case also highlights the barriers that immigrants face in their search for justice in Canada’s legal system. While trying to navigate the complex legal system, immigrants and refugees face a number of language, financial, and informational barriers. In addition, they also have to bear to consequences of the lack of legal aid, transparency, and accountability in the justice system. A report on Immigration and Refugee Law Services, commissioned by the Federal Government of Canada, found that the immigration and refugee legal system in British Columbia is overly adversarial and often produces negative results for refugee claimants and immigrants.70 José’s case exemplifies this statement. In José’s initial inadmissibility hearings, he was not able to access the full extent of procedural fairness for a variety of reasons. José, like many other refugees and immigrants, did not have access to the financial resources or pertinent information in order to access legal aid or acquire knowledgeable legal representation in time for the inadmissibility hearings. Right to informed council is in theory granted to all immigrants, however, this right has no real value in practice if immigrants cannot afford to pay the costs associated.71 Financial barriers continue to obstruct justice in José’s case, as he must find a way to pay for access
to legal representation and a variety of other legal fees while living in sanctuary and thus unable to work.
Due to this lack of financial resources and information, José was not represented by a lawyer, but by a trusted member of his Church in the initial hearings. Although it was an advantage to have a native English speaker present during the hearings, the member of his church did not possess the legal knowledge to sufficiently argue his case. Without an understanding of administrative law principles, immigrants and refugees who self-represent or who choose to be represented by a friend are statistically less likely to achieve positive verdicts.72 The positive correlation between successful claims and legal representation means that a lack of quality state-funded legal aid can be seen as a form of structural discrimination that undermines the potential for immigrants to achieve justice.73 Additionally, as a recent immigrant to Canada at the time of the initial court procedures, José was not yet fluent in the English language. Language barriers prevented him from making fully informed decisions about the legal process, as well as making it nearly impossible to properly understand the legal jargon included in the preliminary documents he received.74
Finally, José’s case exemplifies the documented lack of accountability and efficiency in the legal system that governs immigration issues. His case has been delayed numerous times due to bureaucratic delays, unexplained clerical errors, and other inefficiencies in the judicial process. These unreasonable delays have had
extremely negative impacts on his and his family’s mental and emotional health, as José has been forced to prolong his absence from his family for months at a time while he remains in sanctuary. Since he sought sanctuary in October 2013, José has been separated from his family, their contact limited only to short visits. José’s experience is corroborated by recent findings that the judicial process in Canada, specifically in British Columbia, moves too slowly and is subject to unreasonable delays.75 While these delays may simply be the result of errors or inefficiencies, there is also reason to believe that these errors point to a lack of transparency within the system. It is possible that clerical errors or bureaucratic delays are employed to conceal the fact that the court does not yet have sufficient evidence with which to deny José’s claims. The numerous delays may be simply a method of buying time to try to find a sufficient reason to enforce the deportation order before José’s case must be resolved in court.
Conclusion and Recommendations "Power always has to be kept in check; power exercised in secret, especially under the cloak of national security is doubly dangerous." William Proxmire (as cited in Forcese, 2006, 964)
The case of José Figueroa illustrates the validity of this statement by former US Senator William Proxmire. Under the justification of national security, the Canadian government is attempting to deport a man who came to this country
seeking asylum. José faces a reality where he is forcefully divorced from his family and unable to provide for the needs of his children. An investigation into the why’s behind José’s case reveals that the Canadian immigration policy has shifted to reflect the growing securitization of migration, a shift that tends to undermine fundamental human security while privileging the vague concept of state security. This analysis revealed that current immigration, while contending to protect Canadians from their external enemies, also produces “enemies” within our borders by relying both on overly broad, unrestricted definitions of terrorism and the discretion of officials with limited understanding of the facts at hand.
The use of these broad concepts as the framework for deciding who is permitted to stay in Canada leaves room for an unsettling amount of discretionary power in the decision making process, producing new forms and methods of discrimination and creating a climate of fear among immigrant communities.76 Many innocent people are thus found inadmissible to Canada, and are then forced to navigate a judicial system that is filled with barriers which prevent immigrants from obtaining just outcomes in their cases. As a result, many of Canada’s most vulnerable inhabitants, including José, are subject to deportation and other decisions regarding their future in Canada that endanger their security.
We must not forget that there can be no security without democracy.77 The current system that is put in place to protect the security of Canada is fundamentally undemocratic and unjust. What is needed to rectify this grave
situation is more thoughtful, nuanced and context-specific standards about who is a terrorist, for what acts, and in which circumstances.78 There must be “greater consistency and accountability of immigration decision-making to ensure fairness and to restore public confidence in the legitimacy of the system”.79 Furthermore, there is a need for more effective, equitable and accessible means for migrants to appeal or contest the decisions made regarding their case. Specifically, immigrants and refugees should be provided with state-funded and knowledgeable legal aid, as well as access to information about the inadmissibility process in their own language. Immigrants should also be able to take their case to a judicial review if they so choose.
It should no longer be acceptable, in a country that claims to be democratic, accountable, and respectful of human rights, to employ the discourse of national security in order to justify the undemocratic and discriminatory exclusion of immigrants from a safe future in Canada.80 It is for this reason that the We Are José campaign began. In the next section, the We Are José campaign and its significance will be discussed. Additionally, an overview will be provided detailing how you can support the We Are José campaign and get involved in the struggle for immigrant and refugee rights.
Section Five: How This section will explore how the We Are José movement seeks to bring justice for José and other immigrants like him. We will discuss what the We Are José movement is, why it is important, and how you can become involved.
What is the We Are José movement? We Are José is a social movement that began in support of José Figueroa, a Salvadoran citizen who had been living in Canada for 13 years, when he received deportation orders from the Canadian government. José’s case is unique in that he and his wife have three Canadian-born children who are Canadian citizens and have never called El Salvador home. Given the massive differences between Canada and El Salvador in terms of social and economic development, it is unlikely that José and his wife would relocate the entire family to El Salvador should he be deported. In El Salvador, José’s Canadian-born children would not have the same access to quality health care, education, and other forms of social protection, an issue of particular concern given their son has Autism. Undoubtedly, their children’s’ future opportunities would change drastically. The We Are José movement started as support for José and a way to get his story heard to draw attention to his case in order to get his deportation order reversed. From here, the movement progressed in support of others experiencing circumstances like José’s. The organization aims to provide information and help to others in precarious citizenship circumstances and to aid them in the process of demanding justice. Many others in this position may be unaware of laws, their rights, and they may
struggle with the barriers in the legal system discussed in the previous section. All of these aspects can lead to the misinformation of immigrants or the systematic discrimination of immigrants in the legal system. The We Are José movement aims to assist those in similar precarious circumstances in order to prevent more situations like José’s from occurring.
Why is the We Are José Movement important? It is important to understand the significance of the We Are José movement, not just for its potential impacts on José and his family, but also as a significant political moment.81 Anti-deportation activism, specifically by and with non-citizen individuals, contests and counters the increasingly restrictive and oppressive immigration measures and creates space for “new ways of thinking and acting politically”.82 This form of activism recognizes the violence with which individuals are excluded from and forced into the category of speechless, agency-less, invisible, and apolitical non-citizens.83 Traditionally, the ability to engage in political speech and action is one that belongs to citizens. In this system, those who are denied citizenship by the state are also denied the right to be seen and heard as political beings. Thus, the We Are José movement is a radical political moment wherein José is interrupting the dominant political order not just to be heard, but to demand recognition as an equal speaking being.
It aligns with Rancière’s vision of political activity as a form of activity that “shifts a body from the place assigned to it. It makes visible what had no business being seen, and makes heard as discourse where once there was only place for noise; it makes understood as discourse what was once only heard as noise”.84 In the context of José’s case, the concept of “shifting a body from the place assigned to it” takes on deeper significance. By engaging in this form of anti-deportation activism, José is not only trying to shift from the apolitical identity assigned to him by virtue of being a non-citizen to a political identity, but to contest and challenge the idea that his body has been assigned for deportation to El Salvador.
The We Are José movement calls into question the naturalness of the dominant virtues and decisions and reveals their arbitrariness.85 This campaign has the potential to advance a form of “democratic cosmopolitanism” described by Peter Nyers that transforms our understanding of citizenship from a status ascribed (or not) by states to a practice in which migrants and their allies “hold states accountable for their definitions and distributions of goods, powers, rights, freedoms, privileges, and justice”.86 In the words of Etienne Balibar, movements like We Are José have the ability to break through communication barriers, to allow non-citizens to “be seen and heard for what they are: not specters of delinquency and invasion, but workers and families, from here and there at the same time”. José’s story can make “facts, questions and even oppositions linked to the real problems of immigration circulate in public space, instead of the stereotype held by dominant information monopolies”.87 It is by understanding the history of
immigration policy in Canada, the discourses surrounding the securitization and its implications, and the significance of the We Are José movement as a critical political moment, that we appreciate the significance of José’s case, ally with him and act to bring justice for José and the many other immigrants who are facing and will face similar injustices.
How you can get involved There are many ways in which you can get involved in the We Are José movement. Any action you can take in solidarity with José can make a big difference in the outcome of his case, and the cases of many others like him.
You can make a video in support of José and his cause. For an example of the format for the video, visit weareJose.wordpress.com/tellyourstory.
Donate to the Indiegogo campaign (until May 26th, 2014) to help José Figueroa and his family with the legal costs associated with his fight for justice in the face of a wrongful deportation order. All funds will go towards supporting José cover the financial costs of his fight for justice. The family is in dire need of your support, as they are swimming in legal debt and struggling to support their children due to the fact that José can not work as long as he continues to be forced to live in sanctuary. The Indiegogo campaign can be found at https://www.indiegogo.com/projects/we-arejose
You can also donate online through the Pay Pal link found at www.wearejose.org, under the “Fundraising” tab.
Follow the We Are José movement on twitter at twitter.com/weareJose or find the movement on Facebook.
Spread the word! Whether you use word of mouth, Facebook, Twitter, school organizations or blogs, any way you can help in getting the word out about José and his organization helps the cause.
In addition to these methods, there are several individuals you can write or email to show your support for José. For sample letters to send to the people listed below, see below. You can even organize a letter writing campaign to have more of an impact! •
Send an email to the Ministers of Citizenship and Immigration and Public Safety to show your support for the reversal of José’s deportation order.
You can send an email to the Honourable Chris Alexander (Minister of Citizenship and Immigration) at Minister@cic.gc.ca or send a letter to The Honourable Chris Alexander, P.C., M.P. Citizenship and Immigration Canada 365 Laurier Avenue West Ottawa, Ontario K1A 1L1
Honourable Steven Blaney (The Minister of Public Safety) at firstname.lastname@example.org. (A sample letter can be found below) or send a letter to Minister of Public Safety House of Commons Ottawa, Canada K1A 0A6
Or email the FMLN leadership in El Salvador at email@example.com
Sample Letters To Steven Blaney
Dear Minister: I am writing out of grave concern for the case of Mr. José Figueroa, a Salvadoran refugee claimant and married father of three Canadian-born children, who has been ordered deported by the Immigration and Refugee Board (IRB) due to his past affiliation with the Farabundo Marti Front for National Liberation (FMLN), currently the governing political party in El Salvador. It is especially troubling that the IRB based its ruling on the Canadian Border Security Agency’s (CBSA) assessment that the FMLN “is or was engaged in terrorism and/or subversion” and on coinciding legal arguments from the Ministry of Public Safety The IRB’s decision, the CBSA’s assessment, and the role played by the Ministry of Public Safety in securing Mr. Figueroa’s deportation are shocking, particularly to the many Canadians of Salvadoran origin with past and/or current ties to the FMLN. During El Salvador’s 12-year civil war, the FMLN insurgency was internationally recognized as legitimate and representative, as per the joint declaration by the French and Mexican governments in 1981. At the time, the FMLN was a broad coalition of opposition forces which struggled against a murderous Salvadoran government and military that targeted their own civilian population, violated human rights with impunity, and sustained entrenched socio-economic injustice. In 1992, peace and democracy came to El Salvador precisely because of the FMLN’s dogged resistance, which ultimately forced the Salvadoran government to negotiate an end to hostilities. Since then, the FMLN has participated in elections at all levels and has steadily become the country’s leading political force.
Since 2006, the FMLN has had the most seats of all parties in the Salvadoran Legislative Assembly and has governed more than half of the Salvadoran population at the municipal level. And on March 15, 2009, Salvadorans elected FMLN candidate Mauricio Funes as their President, a historic moment for Salvadorans everywhere. Indeed, the Canadian government recognized that election process as “free and fair,” and was represented by Minister of State of Foreign Affairs Peter Kent during President Funes’ inauguration on June 1, 2009. In addition, the Canadian government is negotiating a Free Trade Agreement with the government of El Salvador. Given all this, how can Canadian authorities conclude that a person is inadmissible to Canada simply for having been affiliated with the FMLN? Should he be deported, Mr. Figueroa will be forced to uproot his family, including his Canadian-born children, despite by all accounts having contributed positively to his Canadian community for over 13 years. I urge you to intervene in Mr. Figueroa’s case and grant him a ministerial exemption that allows him and his family to continue leading productive lives in their Langley, B.C. home. Furthermore, I urge you to address the glaring policy gap this case has brought to light and ensure that the FMLN is clearly and categorically recognized by your Ministry, the Immigration and Refugee Board, and the Canadian Border Security Agency as the legitimate and representative political entity it has been since its inception 30 years ago. Correcting what has happened to Mr. Figueroa and preventing it from happening to others ever again is of serious concern to me and Canadians across the country, especially those of Salvadoran origin. Thank you for your time, and I look forward to your prompt follow-up to my requests. Yours respectfully,
To the FMLN Leadership
Estimados miembros de la Comisión Política: Reciban saludos solidarios desde Canadá. Les escribo sobre el caso de José Figueroa. El Sr. Figueroa es un salvadoreño que ha residido en la ciudad de Langley, cerca de Vancouver, por 13 años con su esposa (también salvadoreña) y sus tres hijos salvadoreño-canadienses. Actualmente, el Sr. Figueroa está bajo orden de deportación por el Consejo de Inmigración y Refugiados (IRB) canadiense, dado que la Agencia Canadiense de Servicios Fronterizos (CBSA) y el Ministerio de Seguridad Pública lo han declarado inadmisible a Canadá por sus vínculos con el FMLN en los años 80. De hecho, las autoridades canadienses involucradas en este caso han concluido que el FMLN es una organización que ha cometido actos de terrorismo. Muchos canadienses, incluyendo a varios de origen salvadoreño, han denunciado los argumentos y las medidas tomadas por las autoridades estatales en el caso de José Figueroa. Por razones obvias, rechazamos categóricamente que el FMLN es o fue una organización terrorista y por consiguiente, que la presencia de José Figueroa en Canadá sea una amenaza a la seguridad pública de este país. Además, sé que el Sr. Figueroa no ha sido el único afectado por la vinculación por parte de las autoridades canadienses del FMLN con el terrorismo. Conocemos del caso del Magistrado del Tribunal Supremo Electoral y militante histórico del FMLN, el cro. Eugenio Chicas, quien la CBSA detuvo en junio del 2009 por varias horas en el Aeropuerto Internacional Pearson de Toronto por razones semejantes por las que el Sr. Figueroa fue declarado inadmisible a Canadá. En el
caso del cro. Chicas, entiendo que dadas algunas intervenciones por la comunidad salvadoreña en Toronto y la Embajada de El Salvador en Canadá, se le permitió entrar a Canadá, aún bajo algunas restricciones, y que Cancillería le envió una nota diplomática al gobierno canadiense al respecto. Tomando todo lo anterior en cuenta, respetuosa- y solidariamente les solicito a ustedes y su partido que incidan sobre el caso de José Figueroa aclarándole al Ministro de Seguridad Pública, el Honorable Vic Toews, que el FMLN no es ni nunca ha sido una organización terrorista y que, por consiguiente, una asociación con el FMLN no debería servir como criterio de inadmisibilidad a Canadá. Agradezco de antemano su atención a este caso,
Stay up to date on José’s case and learn more information:
We Are Jose
Crocker et al., 2007 Macklin, 2001 3 Crocker et al., 2007 4 2010, 5 5 Aiken, 2001 6 Ibrahim, 2005 7 Foucault, 1980 8 ibid, 94 9 Rygiel, 2010 10 Macklin, 2001 11 Abu-Laban, 1998 12 2005, 165 13 Ibrahim, 2005 2
Hardt & Negri, 2000, 245 Ibrahim, 2005 16 Rygiel, 2010 15
ibid Sharma, 2011 19 Hindess, 2003, 24 20 Canadian Council for Refugees, 2003 21 Freitas, 2002 22 Macklin, 2001 23 Sharma, 2011 24 ibid, 95 25 Macklin, 2001 26 Roach, 2005 27 ibid 28 Daniels, 2001; MacKinnon, 2013 29 Burman, 2006 30 Crocker et al., 2007 31 ibid 32 Crocker et al., 2007 33 Arakelian, 2004, 63 34 Thompson, 2013 35 Immigrant and Refugee Protection Act, 29-30 36 Canadian Centre for Policy Alternatives, 2001 37 ibid, 3 38 Kaushal & Dauvergne, 2011 39 Re Ahani, 1998 40 Canadian Council for Refugees, 2003, 7 41 Arakelian, 2004 42 Roach, 2005 43 National Immigration Law Section of the CBA, 2012 44 Roach, 2005 45 ibid 46 Canadian Council for Refugees, 2003 18
Bell, 2006 Waldman, as cited in Bell, 2006, 66 49 The Maytree Foundation, 2001 50 2003, 8 51 Choudhry & Roach, 2003; Forcese, 2006 52 Pratt, 1999 53 Forcese, 2006 54 Pratt, 1999 55 Crocker et al., 2007 56 Aiken, 2011 57 Dauvergne, 2003 58 Burman, 2006 59 Forcese, 2006 60 Sossin, as cited in Forcese, 2006, 980 61 Pratt, 1999 62 Burman, 2006 63 National Immigration Law Section of the CBA, 2012 64 The Maytree Foundation, 2001 65 Cardona, 2009 66 ibid 67 UN Security Council, 1993 68 Vigil Campaign, 2014 69 Behrens, 2014 70 SPARC BC, 2005 71 Barutciski, 2012 72 ibid 73 ibid 74 Pratt, 1999 75 SPARC BC, 2005 76 Crocker et al., 2007 77 Aiken, 2001 78 Kaushal & Dauvergne, 2011, 91 79 Pratt, 1999, 211 80 Canadian Council for Refugees, 2003 81 Nyers, 2003 82 ibid, 1071 83 ibid 84 Rancière, 1999, 30 85 Isin, 2002, 275 86 Honig, 2001, 104 87 Balibar, 2000, 43 48
References: Abu-Laban, Y. (1998). Welcome/Stay Out. The contradiction of Canadian integration and immigration policies at the millennium. Canadian Ethnic Studies Journal, 30(3), 190 – 202.
Aiken, S. (2001). Manufacturing “Terrorists”: Refugees, National Security and Canadian Law. Refuge, 19(3), 54-73.
Antelo, M. (2013). Sanctuary: Last Hope for failed Refugees. Immigrant Women’s Centre. Ontario: Hamilton. Retrieved from: http://womenspressiwc.ca/archives/1439
Arakelian, K. (2004). The Immigration and Refugee Protection Act: One Step Forward, Two Steps Back. (Masters Thesis). Concordia University, Montreal. Retrieved from: http://spectrum.library.concordia.ca/8189/ Balibar, E. (2000). What We Owe to the Sans-Papiers. In L. Guenther & C. Heesters (Eds.), Social Insecurity (42-3). Toronto: Anansi. Barutciski, M. (2012). The Impact of the Lack of Legal Representation in the Canadian Asylum Process. UNHCR. Behrens, M. (2014, March 21). Does Ottawa believe the Salvadoran government is terrorist? Retrieved from: http://rabble.ca/columnists/2014/03/does-ottawabelieve-salvadoran-government-terrorist Bell, C. (2006). Subject to Exception: Security Certificates, National Security and Canada's Role in the "War on Terror". Canadian Journal of Law and Society, 21(1), 63-83. Burman, J. (2006). Absence, “Removal,” and Everyday Life in the Diasporic City: Antidetention/Antideportation Activism in Montréal. Space and Culture, 9(3), 279-293. Canadian Centre for Policy Alternatives (CCPA). (2001). CCPA Analysis Of Bill C-36. Retrieved from: http://www.policyalternatives.ca/publications/reports/ccpa-analysis-bill-c36 Canadian Charter of Rights and Freedom. (2013, c.15) Retrieved from the Government of Canada Website: http://www.pch.gc.ca/eng/1355929397607/1355929510108 Canadian Council for Refugees (CCR). (2003). Refugees and Security. Retrieved from: http://ccrweb.ca/files/security.pdf
Cardona, M. (2009). El Salvador: Repression in the Name of Anti-Terrorism. Cornell International Law Journal, 42(1), 129-155. Central Intelligence Agency. (2014). The World Factbook. Retrieved from: https://www.cia.gov/index/htlm Choudhry, S. & Roach, K. (2003). Racial and Ethnic Profiling: Statutory Discretion, Constitutional Remedies, and Democratic Accountability. Osgoode Hall Law Journal, 41(1), 1-35. Crocker, D., Dobrowolsky, A., Keeble, E., Moncayo, C. C., & Tastsoglou, E. (2007). Security and Immigration, Changes and Challenges: Immigrant and Ethnic Communities in Atlantic Canada, Presumed Guilty? Ottawa: Status of Women Canada’s Policy Research Fund and by the Department of Canadian Heritage. Daniels, R. (2001). Introduction. In Daniels, J., Macklem, P. & K. Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (383-404). Toronto: University of Toronto Press Inc. Dauvergne, C. (2003). Evaluating Canada's New Immigration and Refugee Protection Act in Its Global Context. Alberta Law Review, 41(3), 725-744. Forcese, C. (2006). Through a Glass Darkly: The Role and Review of 'National Security' Concepts in Canadian Law. Alberta Law Review, 43(4), 963-1000. Foucalt, M. (1980). Power/Knowledge: Selected Interviews and Other Writings, Michel Foucault, 1972-1977. C. Gordon (Ed.). Brighton: The Harvester Press. Freitas, R. (2002). Human Security and Refugee Protection after September 11: A Reassessment. Refuge, 20 (4), 34-43. Hardt, M., & Negri, M. (2000). Empire. London: Harvard University Press. Hindess, B. (2003). Responsibility for others in the modern system of states. Journal of Sociology, 39(1), 23-30. Honig, B. (2001). Democracy and the Foreigner. Princeton, NJ: Princeton University Press Ibrahim, M. (2005). The Securitization of Migration: A Racial Discourse. International Migration, 43(5), 163-187.
Immigration and Refugee Protection Act. (2001, c. 27). Retrieved from the Department of Justice Canada Website: http://laws.justice.gc.ca/eng/acts/i2.5/ Isin, E. (2002). Being Political: Genealogies of Citizenship. Minneapolis, MN: University of Minnesota Press. Kaushal, A. & Dauvergne, C. (2011). The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions. International Journal of Refugee Law, 23(1), 5492. Lowry, M. (2002). Creating Human Insecurity: the National Security Focus in Canada’s Immigration System. Refuge, 21(1), 28-39. MacKinnon, L. (2013, April 25). 8 things to know about the new anti-terrorism bill. CBC News. Retrieved from: http://www.cbc.ca/news/politics/8-things-toknow-about-the-new-anti-terrorism-bill-1.1413346 Macklin, A. (2001). Borderline Security. In Daniels, J., Macklem, P. & K. Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (383-404). Toronto: University of Toronto Press Inc. The Maytree Foundation. (October 2, 2001). Brief to the Senate Committee on Social Affairs, Science and Technology regarding Bill C-11, Immigration and Refugee Protection Act. Retreieved from: http://maytree.com/PDF_Files/summaryc11senatebrief2001.pdf National Immigration Law Section of the Canadian Bar Association (CBA). (2012). Bill C-43, Faster Removal of Foreign Criminals Act. Ottawa, Ontario: Canadian Bar Association. Nyers, P. (2003). Abject Cosmopolitanism: the politics of protection in the antideportation movement. Third World Quarterly, 24(6), 1069, 1093. Pratt, A. (1999). Dunking the Doughnut: Discretionary Power, Law and the Administration of the Canadian Immigration Act. Social & Legal Studies, 8(2), 199-226. Rancière, J. (1999). Dis-agreement: Politics and Philosophy. Minneapolis, MN: University of Minnesota Press. Re Ahani. (1998). F.C.J. No. 507. Retrieved from: http://decisions.fct-cf.gc.ca/fccf/decisions/en/item/39613/index.do?r=AAAAAQAFYWhhbmkAAAAAAQ
Roach, K. (2005). The Three Year Review of Canada’s Anti-Terrorism Act: The need for greater restraint and fairness, non-discrimination, and special advocates. University of New Brunswick Law Journal, 54, 308-335. Rygiel, K. (2010). Globalizing Citizenship. Vancouver: UBC Press. Sharma, N. (2011). Canadian multiculturalism and its nationalisms. In Chazan, M., Helps, L., Stanley, A. & S. Takkar (Eds.), Home and Native Land: Unsettling Multiculturalism in Canada. (85-101). Toronto: Between the Lines. Social Planning and Research Council of B.C (SPARC BC). (2005). An Analysis of Immigration and Refugee Law Services in Canada. Department of Justice Canada. The Law Society of Upper Canada. ( 2012). The Steps in an Application for Judicial Review in Federal Court. Retrieved from The Law Society of Upper Canada Website: http://www.lsuc.on.ca/For-Lawyers/Manage-YourPractice/Practice-Area/Administrative-Law/The-Steps-in-an-Application-forJudicial-Review-in-Federal-Court/
Thompson, R. (2013). When Borders Cross People: Bill C-31 and the Securitization of Boundaries Across Bodies and History. (Masters Thesis). University of Toronto, Toronto. Retrieved from: https://tspace.library.utoronto.ca/handle/1807/42651 UN Security Council. (1993). Report of the UN Truth Commission on El Salvador. Equipo Nizkor. Retrieved from: http://www.derechos.org/nizkor/salvador/informes/truth.html Vigil Campaign. (2014). Oscar Vigil Belongs to Canada. Retrieved from: http://vigilcampaign.ca/oscar-belongs-to-canada/ Waldman, L. (2004). Immigration Law and Practice: Volume 1. Markham, Ontario: LexisNexis Butterworths.
** All facts about José’s history and his current case that are uncited within the text of the handbook have been compiled from personal communication with José and official publications of the We Are José campaign. These have been left uncited as it is the stated intent of this document to be used by José Figueroa and the We Are José campaign and the authors of this handbook decided it would only clutter the text to include these citations throughout. Any uncited facts regarding José’s case or the details of his current case are from information compiled from the following sources: We Are José. (2011). http://wearejose.wordpress.com/ We Are José. http://wearejose.drupalgardens.com/ We Are José. https://www.facebook.com/pages/We-Are-Jose/130762186993781 Personal Communication with José Figueroa. (February 27, 2013).