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Criminal Immigration Issues Dealing with INS and other related issues.

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  #1  
Old 05-28-2018, 07:16 PM
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Tufahije Tufahije is offline
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Default Mandatory minimums, pleas and deportation.

I know this is a U.S.A based forum re: immigration but my question is general for anybody. That is to say, not directly of specific laws of a jurisdiction.

My fiancé is a permanent resident of Canada and as a result, faces deportation. Pleading guilty or being found guilty of certain offences removes the right to appeal deportation too.

He considered pleading guilty to some charges in which there are no ways around it [weapons charges such as defacing of serial number] but not other ones. His lawyers [criminal and immigration] advised him not to plead guilty / take a deal at all as acquittal is the only way to avoid the deportation process now. We know trial / sentencing can result in harsher penalties.

Mandatory minimums mean he faces ~ 4 years incarceration if convicted on 2 charges. He’s been offered a plea to go easier on the weapons charges but still guilt on the 2 major ones. His criminal lawyers think, with convictions, trial could result in lower sentencing for those offences for a first - time offender than offered. Even if convicted of those offences and being cleared of the other 2, the lawyers argue he could avoid deportation.

These are private attorneys with good success and he will listen to them. They have worked hard and made progress but some times I wonder if they just want to increase the bill. He has 2 immigration lawyers; one that has worked with him since his arrival. They are working with „ worst case scenario ” to go forward. My fiancé used to want to fight but he is getting tired of the limbo.

There was a very similar case almost 20 years ago with a very similar offender profile and I found out that the guy was not deported after all! He lives in the country legally and openly. But application of laws has changed [become stricter] since then so what good is it ... It seems like a no - win situation.

If 4 yrs seems set in stone, why haggle over the smaller charges? I understand the motive is to make him submit to the other 2 serious charges as well. It is plain to see.

Unless acquittal, he will be deported anyway [at least I think so] so is it worth to haggle over extra incarceration time and just go to trial?

Not sure any of this makes sense. It is questions and venting in one. Thanks for any opinions... if any...
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Old 05-28-2018, 11:41 PM
gvalliant gvalliant is offline
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No legal advise here cause I don't know.

You worry about potential sentences. And you worry about deport. He's your fiance. Are you Canadian?

I ask because if so, benefits to both of you to keep the opportunity for him to achieve Canadian citizenship (and you US citizenship) should be considered. Will never hurt you and may some day help one or both of you.

Ask one of the attorneys if it is possible that dual citizenship opportunity can be preserved and how. I know I'm just adding one more complication to your decision but I would urge you to consider it because if it is possible that is worth some fight.
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Old 05-29-2018, 05:56 AM
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Hi, thank you for the reply.

No, I am not a Canadian citizen either and received permanent residency as well. We are not in the U.S.A, I should have been clear, my apologies. If deportation happens, he will be returned to Russia, and sadly, he doesn’t meet the time requirements for Canadian citizenship right now.

He couldn’t care less if he is deported but I care a lot. As a result, he would want to stay for my sake but he doesn’t care overall.
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Old 05-29-2018, 11:57 AM
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Is the final decision made by a Canadian Judge (or whatever you guys call them)? If so, his lawyers should know what chances he has to remain as a permanent resident, or be deported back to Russia. Like in the US, permanent apparently doesn't mean permanent at all. We even deport Naturalized citizens.
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Old 05-29-2018, 02:48 PM
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Hi, I’m not a very bright crayon so I might not understand it all well. But no, the final decision is not made by a judge.

The CBSA has the right to order a direct removal / deportation [and with no chance of appeal, depending on the sentence ] or an admissibility hearing. Maybe the immigration lawyers know why the CBSA makes a decision in either way. Perhaps permanent residency leads to a hearing ???

The admissibility hearing is carried out by the Immigration Division of the Immigration & Refugee Board [IRB]. The government is represented by some kind of officer and the decision - maker is some one from the Immigration Division. I’m not sure how the lawyers would judge such a process in comparison to one with a judge? Could this be more unpredictable ?

With the crimes, my fiancé is ineligible for an appeal with the Immigration Division but it is my understanding that a review of the case by the Federal Court is possible. They can send it back to the IRB for another hearing.

The lawyers know that deportation is probable but they are still optimistic. One lawyer handling the immigration side is with a firm for difficult cases ... such as inadmissiblity for war crimes. This must be small cake for him.

The „ Faster Removal of Foreign Criminals Act” makes the threshold lower for deportation orders BUT Canada has a backlog due to uncooperative countries taking their citizens back. It is all a mess.
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Old 05-30-2018, 10:35 AM
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Different rules in Canada. Here they get to wait, sometimes for years. before getting their "day in court".
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Old 05-30-2018, 01:31 PM
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There is a lot of waiting here too. For those deemed inadmissible or cannot be counted on to show up for their deportation, they are kept in immigration detention, which is usually max - security provincial jails. Some wait years in these jails due to the fact they are stateless or their „ home countries ” are uncooperative sending travel documents. Some call for a list like your ICE has where they publicly list [shame] non - compliant countries.

The other thing is the IRB is overwhelmed as of late with claims from refugees / asylum seeks from Latin America, Africa and Haiti. Different rules for these people but they were told recently they can wait 16 mos. for a hearing. This was extended to 18 - 24 mos. now. I understand that this is a different branch of the IRB but it must mean all the resources are stretched too and criminal inadmissiblity must take longer to book too.

It is my understanding that foreign criminals receive correspondence from the CBSA while incarcerated to tell them they are up for deportation.

Lastly, my apologies for the ramble, Canada takes a lot of criticism for not deporting foreign criminals faster. The media likes too raise this point and show stories of x who committed x crimes and lives in x city freely. And so, the immigration officials want to make it a priority to get them out faster. But with the backlog at the IRB, how? Hand out deportation orders without inadmissiblity hearings? They are prioritizing cases based on crimes / security threat to the public and my fiancé’s case could end as priority. Anti - Russian sentiment doesn’t help him either!

I don’t expect deportation [if so...] to happen right away but I don’t want it to happen at all. Like I said, it’s a big mess.
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