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Humanitarian Immigration Applications are Last Ditch Effort for Those Seeking Citizenship

In real estate, there is a concept known as chain of title. It means that as property is bought and sold through the years, there is a “chain” from owner to owner that can be traced from the initial owner to whomever is now buying the property.

If there is any defect in that chain—for example, someone does not execute paperwork property, or a signature is forged—the chain could be broken, stripping legal title away from all the owners who bought the property after the defect.

Breaking the Immigration Chain

Canadian immigration law borrows heavily from this real estate concept. Let us say that your great grandparents came to Canada from another country. Your grandparents and your parents were then born in Canada, as were you. The “chain” would go from your great grandparents to grandparents to parents to you.

But let us say there was a problem that was discovered with your grandparents’ immigration application, years after the fact. That break in the chain could end up affecting your citizenship in Canada, even though you were born here, have a family here, and may have had no idea what your great grandparents did or did not do when they immigrated here.

Anyone who attains Canadian citizenship illegally (for example, by lying about a history or background on an immigration application), or who does not apply at all, means anyone else who gained citizenship by virtue of being relatives of those people, does not have valid Canadian citizenship. The “chain of title” in real estate terms, was broken with the prior relatives’ errors.

Canada has No DACA Program

Canada does not have its own version of the United States’ DACA program (which is slated to end shortly), which is a way for undocumented immigrants who came to the United States illegally, but not by any fault of their own (for example, as children), to stay in the country.

DACA is a law designed to avoid having to deport people who built a life in America, who were brought to the country when they were children, and are in the country illegally by no fault of their own.

Canada’s lack of a DACA program puts many people at risk when problems are discovered with their families immigration. Citizens who face deportation because of irregularities by their families, are left only to apply for a Humanitarian & Compassionate application (H&C). As the name implies, this is a last ditch effort to avoid deportation when doing so would be inhumane.

How H&C Applications are Evaluated

An H&C application is looked at on a case by case basis, considering all of the individual’s circumstances. That sounds great, but it ends up being very labor and time intensive. Factors that the government will consider are:

  • How settled you are in Canada – that includes whether you have been working in Canada, you have volunteered in Canada, or you have savings or own property in Canada
  • Family ties to Canadian residents – this is especially important for those who grew up in Canada since childhood, and have parents who are Canadian, or who may have married Canadians or had children in Canada
  • The best interests of any children involved
  • What could happen if the request is denied. This does not require a showing of persecution in whatever country you would be deported to. However, some level of social, economic, or family hardship in your home country must be demonstrated.
  • Unlike other categories of applicants, an H&C applicant does not have to have special skills, any amount of money, or bring anything of benefit to Canada, which is why applicants often will not qualify for other categories to attain permanent residency.

    Denied Applications

    The other problem is that if a removal order is issued to you by the Canadian government, you must leave even if your H&C application is being considered. The application does not “stay” any pending removal order.

    Denied applications can not be appealed to the tribunal; the best you can do is try to bring the matter to a federal court.

    However, even that level of appeal can be limited. First, there are only a few days to appeal an H&C denial with a federal court. Additionally, you must demonstrate to the Court that some mistake of law or fact was made by the immigration official—federal court will not reconsider your entire application or “second guess” any subjective decisions that a government official may have made.

    Fear Prevents Many Applications

    Many people who realize they could face deportation because of actions of their (sometimes distant) family members don’t even try to apply for an H&C exception, fearing that if they are denied, they will face deportation. That is why it is generally used by those with no other options.

    That ends up leaving people in the cold, who have lived there their whole lives, realize there may have been a problem with a family member’s immigration status, and want to do the right thing and have peace of mind by legalizing their residency in Canada.

    If you are worried about the immigration status of loved ones or worried about your own status, contact the Preszler Law Firm for help or for answers to your immigration questions.

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