Luis Lopez’s case breaks through immigration red tape

Colombian born Luis Lopez got a major victory in his efforts to reunite with his family in Fredericton on June 30. “I never imagined this decision … I can now think of the future and look forward to see what I can do for my family,” said Lopez through a translator.

Judge Pierre Dubé handed down a conditional discharge sentence for Lopez’s illegal border crossing, an incident that occurred in May 2011. Lopez is now facing unsupervised conditions for three months. Upon fulfilling the conditions, his permanent resident application will be unblocked and the results “should be favourable and quick,” said said the family’s lawyer, Lee Cohen.

“(The judge) dispensed justice by imposing a decision that was the right decision, and it was a generous, just decision,” said Cohen.

It could have gone far differently, Cohen explained, “If the court had ordered a period of incarceration (sought by the prosecutor), Luis … would have had a criminal record in Canada, and that would have been a monstrous hurdle in his pursuit of permanent residency in Canada … as a person possessing a criminal record, he would in all likelihood be deported from Canada at the end of serving his sentence, and the chances of coming back to Canada become very slim.”

While the victory removes the last barrier from his permanent resident application, his route to get to where he is today reveals a bureaucratic maze full of pitfalls.

During the May 8, 2015 court case, Judge Dubé used the term “red tape” to refer to Lopez’s attempts to enter Canada legally to reunite with his family.

Lopez’s wife, Lorena Grueso Salas, was already in Canada, having been granted permanent resident status years prior through a successful refugee claim. Lopez’s first attempt to come to Canada was also through a refugee claim. He was trying to leave dangerous conditions he faced in Colombia associated with his military service, which involved enforcement against drug cartels. His refugee application was denied.

In a further attempt to bring Lopez to Canada, his wife applied to sponsor her husband through a provincial nominee program. She was denied on account of being on social assistance, which prevents a person from being a nominee. However, that classification was a mistake. She should have qualified for disability status, which does not exclude someone from being a nominee. Her disability arose after she arrived in Canada. Her body reacted badly to medical treatments that have led to ongoing health complications.

The same health problems has led to Lorena Grueso Salas being limited in her ability to care for her children. It was upon Lopez hearing about his wife being in a dire health condition, in addition to learning of a risk they could lose their children to foster care, that Lopez made his illegal crossing at Saint Croix.

The troubling circumstances Lopez faced influenced the judge’s decision. “The judge highlighted the fact that Luis, although in contravention of the law, was in contravention for a high moral reason and was motivated by love and affection for his wife and children and his concern for their welfare,” said Cohen.

If it was not for the mishandling of his application, he likely never would have faced his terrible predicament: the risk of being separated from his wife and children when they needed him versus the risk of an illegal crossing.

Many other migrants have faced separation of their families on account of red tape, often without happy results. Bhavna Bajaj and Aman Sood’s story made headlines in December 2014. The couple applied for permanent residency in 2011 when the mother was pregnant, but did not list their unborn son as a dependent. Three earlier pregnancies had ended in miscarriages, making the absent declaration understandable. The Immigration and Refugee Protection Act requires that all dependents be declared in the application.

The couple planned to pick up their permanent residency cards, then file sponsorship papers for their son and bring him to Canada once they found a home. They were going on advice from an immigration consultant. They got a shocking response to their plan. The family explained that when they landed in Canada in January 2013, Canada Border Services Agency officers threatened to send them back to India on account of their undeclared son, unless they signed that they would never apply to bring their son to Canada as a permanent resident. The family continues the fight to reunite with their 4 year old son, who is living in India with grandparents.

Earlier this year, the case of Samah and Ahmed Aboushady also made headlines. They have permanent resident status in Canada and were separated from their youngest child, Adam, after Citizenship and Immigration Canada rejected the baby’s visitor visa last summer. They fled Egypt in 2010 for the UK. In 2012, their application for permanent residency in Canada was accepted, and they got to Canada in March 2013. They then went to the UK so their children could finish the school year. Adam was born there. He was considered an Egyptian citizen and initially denied a right to enter Canada. Only upon the case going public did the family finally have the matter re-considered and have since been reunited with their son.

There are no doubt many more cases that are unable to gain media attention, nor adequate legal representation as migrants face their bureaucratic hurdles in attempts to reunite with their families.

The red tape faced by migrants trying to attain status in Canada flies in the face of the federal government’s own pronouncements. In February 2014, Immigration Minister Chris Alexander said, “Our government understands the importance of spending time with family and loved ones and we committed to improving the immigration system so that families can be reunited more quickly.”

Cohen’s reflections on Lopez’s important victory reveal the uniqueness of Lopez’s case, which was crucial for the result. Additionally, Cohen was able to take the case on pro bono.

“When you’re dealing in the immigration arena, where the stakes are so high, every victory is huge. When I look at the face of the the person who could have gone to jail this afternoon, it was time, effort and study well worthwhile … I’m not surprised by the decision, but in court it’s never in certainly. The law wasn’t necessarily on our side, but Luis was on our side. His character is so favourable and so positive, and his motivation so laudable.”