Practice Checklists: Appeal Against Deportation

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					LAW SOCIETY OF BRITISH COLUMBIA                                                    APPEAL AGAINST DEPORTATION

       LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary                       DATE   DATE
                                 ACTION TO BE CONSIDERED                                 NA   L   LA   DUE    DONE

Purpose and currency of checklist. This checklist is designed to be used with the
for use by immigration defense counsel representing refugee claimants at hearings
before the Refugee Protection Division (“RPD”) of the Immigration and Refugee
Board (“IRB”) and pursuant to the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “IRPA”) and accompanying regulations and rules. This checklist is
current to August 1, 2011.
Client identification and verification. Law Society Rules 3-91 to 3-102 require
lawyers to follow client identification and verification procedures when retained by
a client to provide legal services, subject to various exceptions. See the CLIENT
New developments:
Bill C-11, the Balanced Refugee Reform Act, S.C. 2010, c. 8, received Royal Assent
on June 29, 2010. The new asylum system it creates is scheduled to come into
effect in June 2012.
If the new Act comes into force, this checklist will be obsolete as the Personal
Information Form (“PIF”) used in the current information-gathering process will
cease to exist.
When the new system comes into effect, what happens to a refugee protection claim
will depend on where it is in the process. There will be no change to eligibility
determinations, grounds for claiming refugee protection, or the impact of being
granted refugee protection. A claim for refugee protection in Canada will still be
made to an officer at Citizenship and Immigration Canada (“CIC”) or the Canada
Border Services Agency (“CBSA”) at an inland office or port of entry. A Form
5611 will still be completed.
If the claim is eligible to be referred to the RPD, the CIC/CBSA will refer it to the
RPD for an interview at the IRB. The interview will be held no earlier than 15 days
after the referral of the claim, unless the claimant consents to a different timeline.
Before the interview commences, the interviewer will:
      explain his or her role;
      verify the interpreter;
      confirm the principal claimant and number of claimants answering ques-
      appoint a Designated Representative where required;
      identify if a claimant is vulnerable; and
  decide on any joinder issues.
During the interview, the interviewer will:
      confirm identity and other claimant-specific documents;
      refer to the IMM5611 for any omissions; and
    pose questions in order to record the basis of the claimant’s claim.
Then information will be gathered in an interview report, which the interviewer will
review with the claimant for verification. After the interview, the interviewer will
stream the claim in order to schedule the RPD hearing. After the interview the
claimant will be provided with:
      an electronic copy of the recorded interview; and
      a copy of the interview report, notice to appear for hearing, and other rele-
       vant documents.

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APPEAL AGAINST DEPORTATION                                                    LAW SOCIETY OF BRITISH COLUMBIA
                                                                                 PRACTICE CHECKLISTS MANUAL

        LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary                         DATE   DATE
                              ACTION TO BE CONSIDERED                                       NA   L   LA   DUE    DONE

The claimant must make amendments or changes to the evidence in the interview
record no later than 20 days before the RPD hearing.
There are no significant changes to the format of the RPD hearing. The Act pro-
vides that the Regulations may set out time limits regarding cases from countries of
origin which the CIC Minister has designated under s. 109.1 of the IRPA or which
a member of the RPD determines to be manifestly unfounded or clearly fraudulent
under s. 107 of the IRPA.
Regulations have been Gazetted which establish time limits for holding RPD hear-
ings. RPD hearings are to be scheduled within 60 days of the interview for
claimants from designated countries of origin, and within 90 days of the interview
for claimants from non-designated countries of origin. The IRB will still expect to
maintain disclosure by 20 days prior to hearing.
It follows that the new, short timelines will require counsel to work more quickly,
efficiently, and diligently to ensure that the factual bases of their client’s protection
claims are developed sufficiently in advance of the interview and that claimants
have either obtained, or begun the process of obtaining, the documents required to
establish their identities and corroborate important aspects of their claims prior to
the interview. Counsel will also have to ensure that they receive documents well
before the hearing date in order to meet timely disclosure requirements.
Additional resources. Detailed information about procedure under the IRPA is
available on the IRB website at Continuing Legal Education
Society of British Columbia resources relating to upcoming changes in immigration
practice include annual editions of the Annual Review of Law & Practice and Im-
migration Issues in Depth 2011 (CLEBC, 2011).

1.   Interview Client
2.   Request Disclosure
3.   Pre-hearing Steps
4.   Preparation for Mediation
5.   Preparation for Appeal Hearing
6.   Conduct at Appeal Hearing
7.   Follow-up After the Hearing


        1.1 Consider Law Society of British Columbia Rules on client identification
            and verification, and complete the CLIENT IDENTIFICATION AND
            VERIFICATION PROCEDURE (A1) checklist. Collect additional information,
            .1 Personal information:
                (a) Citizenship and immigration status; place and date of birth; the
                    basis on which client was first admitted to Canada; if client is un-
                    der legal disability or is a minor child; appointment of designated
                    representative under s. 167 of the Immigration and Refugee Pro-
                    tection Act.
                (b) Copies of deportation order and filed notice of appeal.

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LAW SOCIETY OF BRITISH COLUMBIA                                                          APPEAL AGAINST DEPORTATION

       LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary                          DATE   DATE
                             ACTION TO BE CONSIDERED                                        NA   L   LA   DUE    DONE

               (c) If the client is a legal aid referral; whether the Legal Services
                   Society (“LSS”) referral is received; the LSS assignment date; and
                   the expiry date of LSS coverage.
               (d) Education, including any current schooling or training.
               (e) Employment history, including:
                   (i) Current employment: employer’s name, address, and phone
                       number (obtain permission to contact employer); job title;
                       length of employment with that employer; name of immediate
                       supervisor; hours regularly worked; approximate income; typi-
                       cal duties and future prospects.
                  (ii) Previous employment: same details as set out in preceding
                       paragraph; reason for leaving.
                  (iii) If unemployed: employment prospects, likelihood that prospec-
                        tive employer will in fact hire client.
               (f) Family:
                   (i) Marital status; date and place of marriage, if applicable; possi-
                       ble pregnant wife.
                  (ii) Children’s names, ages, and sexes; who each is living with.
                  (iii) Dependants, including whether client is under an obligation to
                        make maintenance payments; if so, whether client is up-to-date
                        with payments.
                  (iv) Whether client has other relatives living in Canada; if so, their
                       names, addresses, and occupations, and relationship with them.
.                  (v) Persons who raised client; if other than parents, obtain the same
                       information as for living parents (names, addresses, phone
                       numbers, occupations, details of relationship).
                  (vi) Siblings (ages, addresses, occupations).
               (g) Names, addresses, and occupations of friends, employers, mem-
                   bers of the community, or family members who will attest to
                   client’s good character.
               (h) Roots in the community, such as:
                   (i) Membership in clubs, participation in organized sport, etc.
                  (ii) Financial roots (e.g., whether client owns a home, has a busi-
                       ness, has immovable assets).
                (i) Client’s future plans (e.g., education, career, marriage, family).
                (j) Client’s disposition; for example, whether client is:
                   (i) Addicted to alcohol or drugs or has/is participating in any
                       ongoing treatment program.
                  (ii) Suffering from any medical condition/receiving treatment that
                       would be affected by his or her removal from Canada.
           .2 Criminal record:
               (a) Accuracy of the information of Citizenship and Immigration
                   Canada regarding offences, convictions, places, dates, penalties.
               (b) Determine if no appeal for serious criminality under s. 64 of the
               (c) Discuss circumstances, especially mitigating circumstances.

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APPEAL AGAINST DEPORTATION                                                     LAW SOCIETY OF BRITISH COLUMBIA
                                                                                  PRACTICE CHECKLISTS MANUAL

        LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary                           DATE   DATE
                               ACTION TO BE CONSIDERED                                        NA   L   LA   DUE    DONE

                 (d) Obtain the names, addresses and phone numbers of all previous
                     criminal defence counsel and signed authorizations from the client
                     to obtain information and copies of the client’s files.
                 (e) Discuss breaches of probation or parole, escapes, failures to appear
                     in court.
                  (f) Whether client is on probation or parole now; if so, the expiry date.
             .3 If applicable, present charges and number of appearances to date, and, if
                represented, the name, address, and phone number of criminal defence
         1.2 Advise client on the issues (e.g., the Ribic factors) involved in the appeal,
             and on the likelihood and type of dispositions; discuss willingness and abil-
             ity to comply with possible terms of stay of the deportation order.
         1.3 Send client letter confirming discussion set out in item 1.2.

         2.1 If not received, request from the Immigration and Refugee Board: copies of
             the deportation order, filed notice of appeal, transcript of inquiry, and tri-
             bunal record.
         2.2 Complete and file request under Privacy Act, R.S.C. 1985, c. P-21 with the
             CIC and Canada Border Services Agency Privacy Coordinators to obtain
             client’s entire immigration file.
         2.3 Complete and file Privacy Act request for any Corrections Service records,
             including risk assessments, health records, rehabilitation and other pro-
             grams completed.

         3.1 Fix and note the date set for hearing (and any pre-hearing conferences).
         3.2 Advise client in writing of the hearing date(s) set.
         3.3 Note the deadlines for making disclosure, filing expert reports, and witness
             summaries of anticipated evidence.
         3.4 Interview potential references, witnesses and experts (e.g., employers,
             family members, probation officers, doctors, psychiatrists, service organi-
             zation representatives).
         3.5 Obtain statements and expert reports from potential lay and expert witness-
             es respectively which you have decided to call.
         3.6 Make a preliminary evaluation of the case. Consider the facts, law, and
             character of the client and whether the situation warrants exploring a medi-
             ated disposition with CBSA hearings and appeals officer.
         3.7 Meet with client to discuss your evaluation of the case (including risk
             factors for client if deported to his/her country of citizenship), and obtain
             client’s written instructions concerning a proposed disposition.
         3.8 Advise tribunal of need for a translator (if not done when fixing date for

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LAW SOCIETY OF BRITISH COLUMBIA                                                        APPEAL AGAINST DEPORTATION

       LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary                         DATE   DATE
                              ACTION TO BE CONSIDERED                                      NA   L   LA   DUE    DONE

       4.1 After obtaining written instructions from client, prepare a disposition (stay
           of the removal order) on terms and conditions to which client is agreeable.
       4.2 If proposal is acceptable, or other terms negotiated with the consent of
           client, prepare affidavit and written materials in support of the disposition
           and have them signed by the parties in advance of the hearing.

       4.3 Forward the documents to the Immigration Appeal Division in advance of
           the hearing for review by presiding member of the tribunal.

       5.1 Study transcripts of sentencing and court proceeding, documents pertaining to
           corrections and sentences; note important evidence and ask client to review.
       5.2 Interview client in light of evidence obtained on disclosure.
       5.3 Discuss the CBSA’s position with the client.
       5.4 Research legal issues and current risks faced by client if deported.
       5.5 Witnesses:
           .1 Arrange for interview and statements.
           .2 Decide who to call.
           .3 Prepare witnesses for hearing.
           .4 Provide witness and document disclosure to the tribunal and all parties
              at least 20 days prior to the hearing, including witness information re-
               (a) contact;
               (b) purpose and substance of testimony (or assigned summary state-
                   ment if witness is an expert);
               (c) the time needed for the witness’s testimony;
               (d) the client relationship to the witness;
               (e) a description of an expert’s qualifications; whether the witness will
                   testify by telephone or videoconference; and
                (f) proof of disclosure to any other parties.
           .5 Subpoenas (summons to a witness):
               (a) Request issuance by Immigration Appeal Division registry.
               (b) Deliver to process server or arrange other service through the
                   CBSA or CIC, as the case may be, or authorized process server.
               (c) Obtain verification of service or affidavit of attempted service.
               (d) Consider arrangement for teleconference evidence from witnesses
                   unable to attend hearing and notify the tribunal.
       5.6 Prepare hearing plan.
       5.7 Decide if you require an adjournment, and if so:
           .1 Discuss with client.

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APPEAL AGAINST DEPORTATION                                                   LAW SOCIETY OF BRITISH COLUMBIA
                                                                                PRACTICE CHECKLISTS MANUAL

        LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary                        DATE   DATE
                              ACTION TO BE CONSIDERED                                      NA   L   LA   DUE    DONE

            .2 Notify hearings officer and see if he or she will consent.
            .3 Notify the tribunal in writing and by telephone explaining the reasons
               for seeking an adjournment.
            .4 If the adjournment is granted:
                (a) Fix date and diarize it.
                (b) Explain to client and ensure client has noted the date. Confirm date
                    with client in writing.
                (c) Notify witnesses.

        5.8 Prepare hearing brief, including:
            .1 List of essential elements of the case you have to prove.
            .2 Your client’s direct testimony; consider your duty as an officer of the
               court (Professional Conduct Handbook, Chapter 1, Canons of Legal
               Ethics, and CBA Code of Professional Conduct, Chapter IX).
            .3 Opening address.
            .4 Direct examinations.
            .5 Cross-examinations, considering:
                (a) Who the CBSA hearings and appeals officer will call.
                (b) What each witness will say (or prove).
                (c) The weaknesses of each witness.
                (d) What testimony each can give that might help client.
                (e) How to frame questions to emphasize evidence positive to client
                    and minimize the impact of evidence negative to client.
            .6 Evidentiary arguments; arguments regarding advisability of statements,
               weight to be given to evidence in the alternative.
            .7 Charter arguments.
            .8 Closing arguments.
            .9 Prepare submissions on disposition.
           .10 Prepare client for hearing, including: dress, manner, testifying, and
               being cross-examined.
           .11 If any professional responsibility issues arise, contact a Bencher of the
               Law Society.
           .12 If an issue about constitutional validity arises, consider the notice
               provisions of Rule 52 of the Immigration Appeal Division Rules,

        6.1 When the case is called, introduce yourself, say your client is present and
            you are ready to proceed.
        6.2 Consider any preliminary motions.
            .1 Apply for adjournment if previously refused.
            .2 (Renew) any objections if provided with late disclosure.

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LAW SOCIETY OF BRITISH COLUMBIA                                                     APPEAL AGAINST DEPORTATION

       LEGEND — NA = Not applicable L = Lawyer LA = Legal assistant or secretary                         DATE   DATE
                             ACTION TO BE CONSIDERED                                       NA   L   LA   DUE    DONE

       6.3 Make opening; set out whether appeal is on legal or equitable or both.
       6.4 Call witnesses.
       6.5 Consider getting written instructions that client does or does not wish to
           have certain witnesses called to testify.
       6.6 Consider whether to re-examine on new matters raised in cross-
           examination after the hearings and appeals officer and tribunal have cross-
           examined and questioned client respectively.
       6.7 Make final argument.

       7.1 If deportation order is quashed:
           .1 Explain significance to client.
           .2 Send reporting letter and statement of account.
           .3 Close file.
       7.2 If deportation order is stayed:
           .1 Advise client and explain to client terms and conditions of the order
              made by the tribunal, and explain the consequences of a breach of the
              order, and stress the effect of further arrest or committing any further
           .2 Send statement of account to client.
           .3 When the entered order is received from the tribunal, copy it for client
              with written instructions (which you will have previously given orally
              to client) in your reporting letter (with statement of account if file not
              billed at conclusion of the hearing).
       7.3 If the appeal is dismissed:
           .1 Discuss with client the advisability of a judicial review to Federal Court
              of Canada.
           .2 Notify client of limitations period(s) for leave and judicial reviews;
           .3 Send reporting letter and statement of account.
           .4 If client is not going to pursue judicial review, close file.

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