VB7-06680

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : VB7-06680 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision November 7, 2018 Date de la décision Panel Paula Faber Tribunal Counsel for the person(s) who is(are) the subject of the appeal David Matas Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (Appellant) alleges to be a citizen of Eritrea. He appeals a decision of the Refugee Protection Division (RPD), rejecting his claim for refugee protection. [2] He is requesting that his appeal be allowed and that the RAD find him to be a Convention1 refugee or a person in need of protection. DETERMINATION [3] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),2 the RAD sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee. BACKGROUND [4] At the time of his RPD hearing, the Appellant was a 34-year old man who alleged that he would face persecution in Eritrea for evading mandatory military service. [5] On May XXXX, 2005, before he could be conscripted, he left Eritrea to Sudan. He travelled to and lived in several countries on his way to the US where he remained for ten years. [6] He alleges that he sought refugee protection in the US, but his request for asylum was denied, instead he received "withholding of removal" status. [7] The Appellant came to Canada on April 7, 2017, and made a refugee claim upon arrival. He was afraid that he would be removed to Eritrea by the US. [8] The Appellant's claim was heard by the RPD on June 7, 2017 and September 22, 2017. A written decision rejecting his claim is dated September 26, 2017. ANALYSIS RPD's reasons [9] The determinative issues were identity and credibility. The RPD found that the Appellant was a citizen of Eritrea, but also found that he was a citizen of the US. Appellant's arguments [10] The Appellant argues that the RPD erred in finding that he is a US citizen. Admissibility of New Evidence [11] The Appellant submitted new evidence upon appeal to the RAD:3 1. US Citizenship and Immigration Services documents: INA: ACT 240A - Cancellation of Removal: Adjustment of Status and Citizenship through Naturalization. 2. Immigration Equality, Withholding of Removal and CAT. 3. CNN, Trump's executive orders dramatically expand power of immigration officers, January 28, 2017. [12] Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claim. [13] If the proposed new evidence meets the requirements of section 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza4 as subsequently modified by the same court's decision in Singh;5 effectively I will assess the credibility, relevance, and newness of the evidence in order to determine whether it is admissible. [14] With the exception of the CNN news article which is dated January 28, 2017, the documents provided by the Appellant are not dated, but given their content, I find that they, like the CNN article, did not arise after the rejection of the claim. [15] These documents are all printed from the internet, and the website addresses are displayed at the bottom of the pages. I therefore find that these document were reasonably available at the time of the rejection. [16] However, in consideration of the specific circumstances of this case, I find that the Appellant could not reasonably have been expected to have presented them at the time of the rejection. The Appellant provided documentation before the RPD establishing his withholding of removal status in the US. A copy of a US withholding of deportation order granted November XXXX, 2007, and a copy of a US Employment Authorization document were presented.6 [17] On April 7, 2017, the RPD disclosed to the Appellant a US criminal history record document which shows the Appellant's citizenship as "U.S.". In its decision, the RPD found that this document is an accurate account of the Appellant's identity with respect to US citizenship. [18] The Appellant did not anticipate having to establish that he is not a US citizen despite having received the disclosure of the US criminal history document before the hearing (?), because he had provided the RPD with proof of his withholding of removal status. [19] The documents that the Appellant seeks to enter include an excerpt from the Immigration and Nationality Act, and other documents which explain US citizenship acquisition and withholding of removal status. These documents establish, on a balance of probabilities, that the Appellant could not be a citizen of the US. With respect to the requirements under section 110(4) of the IRPA, I find that the Appellant could not reasonably have been expected to have presented these documents at the time of the rejection because he had provided documentation of his US status. [20] With respect to the "Raza principles" as modified by Federal Court of Appeal in Singh. In terms of the source and the circumstances of the evidence, I find that in this case it is sufficiently credible to be considered. It is clearly relevant, and I find that it is new in that it seeks to contradict the RPD's conclusion about whether or not the Appellant has US citizenship. [21] For these reasons, and in these particular circumstances, I am allowing the inclusion of the new evidence on record. Role of the RAD [22] When reviewing the RPD decision, the RAD is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. The RAD may defer to the RPD's credibility assessment of the oral testimony if it finds that the RPD had a meaningful advantage in the circumstances. [23] In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the Appellant's testimony where the RPD would have been in a better position than the RAD to judge it. Merits of the Appeal [24] I have conducted an independent assessment of the evidence and arguments.7 This review includes listening to the recording of the two sittings of the hearing. [25] The Appellant has argued that he is not a US citizen and never applied for US citizenship. He is a citizen of Eritrea only and has consistently stated that he had been granted withholding of removal in the US. In support of this, the Appellant provided the RPD with a copy of an Immigration Court document -- an order in removal proceedings dated November XXXX, 2007, listing the Appellant as the respondent. This document indicates that withholding of removal pursuant to Convention against Torture is granted. A copy of the Appellant's US Employment Authorization was also provided. This document states under the section Current Immigration Status: Granted Withholding of Deportation.8 [26] However, despite this information, the RPD found that based on a notation of US citizenship on the Appellant's criminal history record, that as of April 2013, he was a citizen of the US.9 [27] The RPD found that the Appellant was evasive in answering questions about whether or not he had applied for citizenship in the US, however, in my review of the recording, I find that he was not evasive. In his response to the question regarding US citizenship, he said that he had not been accepted for asylum so he could therefore not apply for citizenship or any other status in the US. He indicated in testimony that under his withholding of removal status he could work, but he could also be deported at any time. [28] The RPD disclosed a copy of the instructions for the application for asylum and for withholding of removal in the US.10 This document states that if asylum is not granted, the applicant may still be eligible for withholding of removal. It goes on to state that if an order withholding removal is obtained, the applicant cannot be removed to the country where life or freedom would be threatened, but there is a possibility of removal to a third country as the person is under a removal order. [29] Further in the instructions, it is indicated that if the applicant is granted withholding of removal, it does not give them right to bring relatives to the United States and it does not give the right to apply for lawful permanent resident status in the United States. [30] Further objective information regarding withholding of removal is the Immigration Equality document 11which states in part that: 1. A person granted withholding of removal has no pathway to a green card or to U.S. citizenship. Because an order of removal was issued, and then withheld, in most cases a person would have to reopen their removal proceedings in order to pursue other immigration options. 2. A person granted withholding of removal is required to pay a yearly renewal fee for an employment authorization document in order to maintain the legal right to work in the United States. 3. People granted withholding of removal cannot travel outside of the United States. If they do, they are considered to have self-deported and the order of removal the immigration judge issued will go into effect. This will make it very unlikely for that person to re-enter the United States. 4. The government retains the legal right to deport people granted withholding of removal to a country other than the one from which they were granted withholding of removal. Immigration and Customs Enforcement frequently issues "Orders of Supervision" that require people granted withholding ''to check-in" regularly with immigration either in person or by phone, and to request prior permission before leaving the state. These required check-ins can sometimes last for years, or for forever. [31] The Appellant argues that a person who is subject to withholding of removal has to go through a number of steps to achieve US citizenship. The objective information also indicates that it is a difficult process and that it is unlikely for a person granted withholding of removal to acquire a green card and then US citizenship. According to the information in the US Immigration and Naturalization Act, section 240A, the first required step is the cancellation of the removal order.12 The Appellant has said that his removal order has not been cancelled, and there is no evidence before the RPD or the RAD indicating it has been cancelled. [32] I accept the Appellant's argument about not being eligible to begin the process of applying for cancellation of removal, according to the time frame in the US law, until just before leaving the US. First among several listed criteria is that the person must have been physically present in the US for a continuous period of not less than ten years immediately preceding the date of such application.13 The Appellant arrived in the US in 2007. [33] I find that even if the Appellant had applied to have his removal order cancelled and it was accepted, he would only receive permanent resident status in the United States. The objective documentation before me indicates that a person must have been a permanent resident for at least 5 years prior to an application for citizenship.14 [34] In its decision, the RPD stated that the Appellant did not provide credible evidence to rebut the evidence of US citizenship. The Appellant argues that the US law which shows that he could not be a US citizen is credible evidence to rebut the evidence of US citizenship in his US criminal record history.15 I agree with the Appellant, and I find that there is reliable and sufficient evidence to establish, on a balance of probabilities, that the Appellant could not be a citizen of the United States. [35] Based on this information, the Appellant has argued that the criminal history document relied upon by the RPD to indicate US citizenship is legally wrong. According to the US law, the Appellant could not have obtained US citizenship, so the decision of the RPD based on the Appellant having US citizenship must be wrong. I agree with the Appellant and I find that it was an error for the RPD to determine that the Appellant was a US citizen. [36] In its decision, the RPD writes that its finding of US citizenship is supported by the Appellant's behaviour. It found that the Appellant would not have come to Canada, trading a durable form of protection in the US (withholding of removal) for an uncertain future in Canada unless he was able to return to the US. The Appellant testified that he was afraid of losing his status in the US and he wanted to be able to travel to visit his brother in Sweden. [37] The objective documents already cited indicate that a person with withholding of removal is not able to travel and return to the US. The Appellant also describes the situation in the US under the Trump administration, with the xenophobic statements and signed executive orders against immigrants and refugees. This administration has lifted suspension of removal for certain groups and the Appellant was afraid that these measures would apply to him. I agree with the Appellant and I find his behaviour and motivation for leaving the United States supports his non-US citizen status. If he was a US citizen he would be free to visit his brother in Sweden and return, and he would not fear removal from the US.16 [38] The RPD accepted the Appellant's explanations for not providing official Eritrean identity documents as reasonable, and his identity as a citizen of Eritrea was accepted based upon his testimony, the US documents, language of interpretation and a notarized declaration from his older brother. In its reasons for decision, the RPD found that the country documents showed that for someone with the Appellant's profile, who evaded military service, left the country illegally, and claimed asylum abroad, persecution upon return to Eritrea is highly likely. I agree with the RPD and given that I find that the Appellant is not a citizen of the US, his claim for refugee protection must be accepted. CONCLUSION [39] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee. (signed) "Paula Faber" Paula Faber November 7, 2018 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 Appellant's Record (AR), p. 11-18. 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 6 Refugee Protection Division (RPD) Record, pp. 93-94. 7 Tekle v. Canada (Minister of Citizenship and Immigration) 2017 FC 1040. 8 RPD Record, pp. 93 and 94. 9 RPD Record. p. 63. 10 RPD Record, p. 110: RPD Exhibit 8. 11 AR, pp. 13-14. 12 AR, p. 11. 13 AR, p. 11. 14 AR, p. 12. 15 AR, p. 11. 16 AR, p. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB7-06680 RAD.25.02 (September 18, 2018) Disponible en français