July 28, 2012

Mario D. Bellissimo Quoted In The Toronto Star “Proposed Law Could ‘Banish’ Long-Term Residents”

Are permanent residents “foreigners”? How long must immigrants be in Canada to be considered Canadian? And is citizenship just a piece of paper to avoid deportation?

These are some of the unexpected questions arising from Ottawa’s proposed legislation stripping the right of “foreign criminals” to appeal a deportation order if they serve a jail sentence in Canada of six months or more – much stricter than the current two years.

The changes “are over the top, ” in the opinion of veteran immigration lawyer Mendel Green. “I am all against criminalities, but what this government is doing is remaking the concept that we deal with permanent residents (within) our legal system. We are going back to the dark ages by banishing people from our country.”

Critics say most of the so-called “foreign criminals” affected are going to be permanent residents – among the hundreds of thousands of people who have called Canada home for years but, for various reasons, have never become citizens. Some may be unaware of the distinctive rights attached to citizenship.

The proposed law lets the government revoke their immigrant status without appeal and send them back to their land of their birth. What’s more, it would make them ineligible to remain or ever return to Canada on humanitarian grounds, such as family ties here.

Some of those “foreign criminals” will be like Leonzio Carbone, now 50, who was just 5 when his family emigrated from Italy in 1967.

On June 8, after serving two years in jail for drug trafficking and weapon possession, Carbone was shipped back to Italy, a country he barely remembered. Left behind were his seven children, aged 3 to 24.

“I couldn’t believe, after living in Canada for 45 years and being a permanent resident of this country, the government deported me, ” Carbone, who never acquired Canadian citizenship, told the Star from Italy. “I would plead for a second chance to stay in this beautiful country I once called my home. I would like to ask the immigration minister if being there for 45 years means anything. That’s almost half a century.”

A perception of immigrants as forever “foreigners” has been underscored by Mayor Rob Ford’s response to the Danzig St. mass shooting, suggesting using “immigration laws” to banish criminals from Toronto.

Some of Ottawa’s proposed changes could deter overseas criminals involved in organized crime or crimes against humanity from entering Canada. But legal experts said the main effect of the Faster Removal of Foreign Criminals Act will be to “banish” permanent residents.

While no one disputes the need to remove foreign criminals, critics question whether the legislation strikes the right balance.

Referring to permanent residents as “foreigners” is misleading, said Toronto lawyer Mario Bellissimo, an executive member of the Canadian Bar Association’s immigration section.

“They are casting the net too wide, ” he said. “People make one mistake – even if it’s a non-violent crime – they will be removed.”

Bellissimo believes the bill speaks to the government’s “lack of confidence in the immigration tribunal and Canadian judiciary.”

The Immigration and Refugee Board’s Immigration Appeals Division (IAD) is responsible for adjudicating appeals from removal orders, sponsorship and residency decisions.

Of almost 7,000 appeals filed with the IAD in 2011, only 620 involved criminal convictions (on charges such as drug trafficking, theft, dangerous driving or assault with a weapon). Of the 369 of those cases granted a second chance under the appeals system, 262 maintained a clean slate over their probationary period and were able to get their permanent residency back. (Seventy breached their conditions and were removed, while 37 withdrew or abandoned their appeal.)

The Conservatives say the bill would close loopholes that allow people inadmissible to Canada to prolong their stay through “endless” appeals. “These tough but fair measures will ensure that foreign criminals won’t be allowed to endlessly abuse our generosity, ” Kenney told an Ottawa news conference.

But the convicted criminals Kenney cited from “out of dozens of examples” were almost exclusively permanent residents. They included Geo Wei Wu, from China, convicted of theft, dangerous driving, assault and fraud; Singh Khosa, from India, convicted of criminal negligence causing death; and Joselito Rabaya Arganda, from the Philippines, sentenced for forgery, credit card fraud and possession of counterfeit money.

Carbone, the man deported to Italy, said he got into drug trafficking when the bar and grill he opened in Vaughan in 2004 foundered. He was charged with possessing one pound of marijuana and one pound of cocaine for the purpose of trafficking.

Although the court sentenced him to two years less a day in jail – just under the benchmark for deportation – the Canada Border Service Agency counted Carbone’s four-day pre-sentence custody toward the total sentence time and, under the current rules, barred him from appeal.

Connie Carbone, 22, his eldest daughter, agrees that foreign criminals shouldn’t have the right to “endless” appeals, but says it’s wrong to cut off the right to an appeal altogether.

“My father is not a dangerous man. He has never committed a crime of assault or murder. I agree a drug trafficking charge is bad, but it is by far not the worst, ” she said. “I don’t think it is fair they sent him to a country where he knows nothing, after living in Canada his whole life.”

She said the government should at least allow humanitarian and compassionate consideration.