The Undesirables

From refugees to prisoners – Canada is using its immigration system to deal with suspected terrorism cases so it can circumvent legal protections for suspects.

It is as though Jahanzeb Malik was sent over straight from central casting. The look of him couldn’t be a better illustration for the accusations he faces. In pictures, Malik’s black hair juts out in inky points around his dark brown face. In others he looks freshly shorn. His dark beard is scraggly and long – more than a fistful at least. His eyes are alternately wild and beady. Malik’s orange jumpsuit tops off the image. His uniform, his dark skin, his black hair and beard are all easy reminders of the rows of terror detainees in the early days at Guantanamo. Those orange-clad figures kneeling in front of their Guantanamo cells gave rise to this one who is peering right now through the video camera.

But Jahanzeb Malik is not in some far-flung prison. He is being held in indefinite detention at a prison in Lindsay, northeast of Toronto, under national security provisions of the Canadian Immigration and Refugee Act.

Malik was arrested in March earlier this year. The public details of the case against him are thin. According to the government, Malik, a Pakistani and non-citizen resident of Canada, tried to “radicalize” a fellow Muslim. The “fellow Muslim” was, in fact, an undercover officer with the Royal Canadian Mounted Police (RCMP), Canada’s federal and national police force. Malik allegedly showed the undercover officer beheading videos by the Islamic State, also known as ISIS or Daesh, and talked of attacking targets in Toronto including the American consulate. Malik also allegedly tried to help the undercover officer build an explosive device and claimed to be a friend of Yemeni-American al-Qaeda preacher Anwar al-Awlaki.

The announcement of Malik’s arrest and allegations of plnning t commit acts of terrorism came through the Canada Border Services Agency (CBSA), the federal agency responsible for border and immigration enforcement as well as customs services. The agency said Malik had been under investigation since September 2014. He was taken into custody on security grounds pending a deportation order but not charged with any terrorism offences. In June, the Immigration and Refugee Board (IRB), after a series of hearings, stripped Malik of his permanent resident status on the grounds that he poses a security risk and cleared the way for Malik to be deported back to Pakistan.

In coming to its conclusion, the IRB relied on the words of the undercover RCMP officer who remains anonymous.

The key thing to note in the case against Jahanzeb Malik is that the Canadian government chose to deal with Malik’s case not through the criminal justice system but through the immigration system. Maybe Malik is the threat CBSA says he is. Maybe he was willing to and capable of carrying out a large attack in Toronto. Maybe he was actively seeking to recruit people to his cause. And maybe he wasn’t doing any of those things. Maybe he’s just a big talker looking to impress a man he thought was a co-religionist who had fought in Bosnia. Maybe there is a ton of evidence. Maybe there’s nothing much at all. We’ll never know because instead of charging and prosecuting Malik, the Canadian government is simply deporting him. The Pakistanis can sort him out. Or not.

A person can be deemed inadmissible to Canada for a variety of reasons – lying on an immigration application; a failed refugee claim; committing a serious crime or having a history of breaking the law; or, under new legislation, even a reasonable suspicion of an immigration official that the individual does not plan to live in Canada long term post-citizenship.

In immigration hearings, the evidence is not made public and the burden of proof is far lower than in criminal cases. Additionally, the subset of immigrants deemed a security or flight risk are kept in detention until deportation making it difficult for them to organize a defense for themselves. For many, that system has meant years of indefinite detention because the countries they are being deported to are in the midst of war or because the detainee’s country of origin practices torture or the detainee fears persecution on some other basis. Although legally the government is allowed to send them even if they have a specific fear of torture or persecution, the fear does allow the person an opportunity for appeal which means they end up sitting in prison while the appeal process is underway – a process that can take years. In a few cases, detainees have died or committed suicide but, again, details surrounding the deaths are hard to come by since, in the immigration system, information is private.

Malik’s case is part of a broader trend. Increasingly, the Canadian government is turning to the immigration system to simply get rid of people who are accused of a variety of national security threats. While the numbers are still relatively low, civil liberties groups, refugee advocacy organizations, and lawyers are calling attention to this growing trend of using the Immigration and Refugee Act to effectively prosecute and deport individuals accused of terrorism-related crimes.

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Anser Farooq, a criminal lawyer based in Brampton, northwest of Toronto, is representing Jahanzeb Malik. Farooq says the bar is set very low for designating someone a security risk. “They can use hearsay, they don’t need backup or corroboration for claims (about an individual) and so the same test is not there as would be in a criminal offence. If you get pulled into the immigration system you’re getting a one-way ticket out of Canada,” he says.

Typically, if a non-citizen commits a crime like murder, sexual assault, or burglary, for example, and the government decides to deport him, he will be prosecuted for that crime first. Farooq, who has worked on several terrorism-related cases, says the government has no desire to prosecute terrorism cases for non-citizens and so “they stick the guy in the immigration process and he’s gone in three months and there’s no need to prove his guilt.” He says once a person is in detention it becomes extremely difficult to fight their case because they end up out of reach even to their own lawyers. Very few people who find themselves in immigration detention have the will to fight their situation especially if they have little or no family support and lack the funds to hire a lawyer. Putting up a fight can take years and most people are not up for a battle fought alone from inside a prison cell.

Farooq says if the government has a serious case against Malik they should charge him and prosecute him in court, not send him packing back to Pakistan.

Immigration detention in a snapshot

While the handful of terrorism cases where the accused has ended up in the immigration system attract the attention of the media, most cases of indefinite detention have nothing to do with terrorism – or any criminal behavior at all — and receive no attention. Immigration activists have tried for years to get the problem on to the radar of Canadians but in an era of heightened anti-immigrant, anti-foreigner sentiment, it’s not easy to garner sympathy for outsiders who are seen to be ruining the country and deserve to be kicked out. Add to the mix a dearth of public information about who is in detention and the problem ends up remaining on the sidelines. It only hits the news when there’s a allegation of terrorism or when someone dies in custody.

According to the Canadian Council of Refugees, 13,500 people made refugee claims in Canada in 2014. Not all, or even most, refugee claimants end up in detention. It is typically those failed claimants that an immigration official has decided during the course of a hearing are a flight risk and will not show up for deportation. That risk is sometimes simply assessed by how unwilling a claimant is to return to his home country — an odd gauge given the individual was willing to flee in the first place. But they aren’t the only ones detained. The detainee population also includes the children of parents who are in detention; migrant workers who broke the terms of their visas and are being sent back; people placed in mandatory detention on arrival in Canada (their identity can’t be verified or they arrived as a group); and those who are detained on security certificates — a process through which a person can be deemed a threat to national security on the basis of secret evidence.

Canada’s refugee policies used to be fairly generous despite the fact the process was long and unwieldy. This led to concerns that applicants were regularly uprooted after years of making Canada their home. With recent changes to the law, the process that used to take years has dwindled to months. And while it may be better in some ways to find quick resolution to one’s refugee claim, the system has become aggressive. It lacks oversight, there is little due process, detainees’ access to lawyers is limited, there is an arbitrary nature to decision making, it is mired in opacity, and it ends up incarcerating people who have committed no crime.

Recent figures have shown that while deportations have dropped by almost 50 percent, the number of days people are spending in detention has doubled. Those numbers led a former director of immigration enforcement at CBSA to observe, “They’re detaining more, removing less and have less people on the street. What it means they’re using detention as storage. They’re bringing people in and locking them up.”

The activist organization, End Immigration Detention Network, used access to information legislation to build a picture of what immigration detention looks like. In its 2014 report, “The Truth About Immigration Detention,” on any given day some 600 people are being held in immigration detention across the country. About ten per cent of them have been detained for a year or more. In 2013, somewhere between 7 373 and 9 932 people spent some time in immigration detention. That includes women and children. In 2013, there were approximately 205 children in detention. According to the Immigration Legal Committee, which looked at detention release rates, in 2013 detention review hearings resulted in the overall release of detainees only 13.9 percent of the time.

One of the criticisms of the immigration detention system is its arbitrary nature. Unlike criminal proceedings, immigration proceedings are closed and, often, even the detainee is unable to advocate for him or herself. Assessments are subjective on the part of detention review board members and that subjectivity is reflected in the breakdown of release rates.

The Truth About Immigration Detention report notes that in 2013 between the 44 different members overseeing detention review hearings across Canada, the release rate varied from 5 percent to 33 percent — an astounding disparity if members are working with the same set of criteria. The report also noted regional discrepancies of a 27 percent release rate in Western Canada to 9 percent in Ontario. The maximum average time spent in detention was 38 days in northern Ontario with the minimum average time being ten days in Pacific Canada.

Canada currently has three dedicated immigration holding centers. The problem is the centers do not have nearly enough capacity to hold the thousands of people held on immigration detention annually. So, the Canada Border Services Agency (CBSA), which has authority over the detainees, rents beds in jails and local police stations. In 2013, a total of 142 such facilities were used.

Detainees end up co-mingled with criminal populations. They share meal times, transport, use the same facilities, and are sometimes exposed to violence and abuse at the hands of people convicted of violent crimes. For those who end up in detention for long periods of time, they sometimes end up spending more time in prison than those convicted of serious crimes. Add to all of this that detainees are difficult to access whether by families or advocates and are generally unaware of what is happening with their own cases.

So far, the only outside oversight of the entire immigration detention system comes from the Canadian Red Cross Society. Since 2008, the Red Cross has been issuing a confidential annual monitoring report to CBSA. The 2012-2013 report was made public in 2014 after an access to information request. The report made a list of 28 recommendations looking at eight areas where the Red Cross felt protection gaps exist including access to immigration detainees; minors in detention; co-mingling; and mental health in detention.

The trend toward temporariness

Immigration detention fits into the more aggressive system that has developed over the years but the entire system of immigration needs to be seen against the backdrop of the shift in Canada’s view of migrants.

There was a time when gaining permanence in Canada was relatively easy. In the 1960s, visitors to Canada were offered the chance to apply for immigration at the airport. Immigration officials would roam university campuses looking for foreign students, pursuing them to apply for permanent status in Canada.

The trend today, however, is toward temporariness.

For nearly two decades, the number of people entering Canada annually on temporary permits has exceeded the number of people entering Canada as permanent residents. That trend has accelerated in the last ten years or so. Today the number stands at about 350 000 and 250 000 respectively. There are the well-educated and experienced who have come on permits to perform skilled work. And then there are the mostly racialized and poor who’ve come to pick crops, work construction and other seasonal jobs. The restrictions on all of them are fairly tight and their rights are limited but they are wanted – needed – and so the government continues to give visas and people, despite the temporariness of their situation, continue to arrive.

And then there are the people like Masoud Hajivand: the undesirable.

At the end of June, Masoud Hajivand will have spent one year in a maximum security prison in Canada. His only “crime” is to have gotten caught up in the administrative labyrinth of the Canadian refugee system.

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Masoud Hajivand arrived in Canada in January of 2007. He came from Khuzestan province in Iran’s southwest along the border with Iraq. He says he was involved in peaceful protests against the government when it seized parts of his community’s land for oil exploration and failed to compensate the people. Hajivand says his younger brother was killed when the government moved to shut down the protests. When the authorities came for him, he says, he fled.

When he arrived in Canada he made a refugee claim. It would be a little more than two years before his turn came to make his case in front of the Immigration and Refugee Board. He was refused asylum. Two years after that, in 2011, he was ordered to leave Canada and return to Iran. He says because he was terrified of being sent back to Iran, he skipped his deportation hearing. An arrest warrant was issued and in 2014, Hajivand was taken into custody.

Today, Hajivand sits in the Lindsay Superjail – or as it’s formally known, the Central East Correctional CenterThe U – in Lindsay, Ontario. The same facility where Jahanzeb Malik is detained. Every 30 days he has a detention review hearing where an immigration official decides he still presents a flight risk and sends him back to detention for another 30 days until his next hearing. Because, theoretically, these hearings provide an opportunity for detainees to get out of detention, the Canadian government will not concede to the fact that, in many cases, people end up incarcerated indefinitely. Statistics gathered by advocacy groups like No One is Illegal have shown that once a detainee crosses the six-month mark in detention it is unlikely he will get out until he is deported.

In the time Hajivand has been in Canada his life has changed significantly. He got married to a woman who is a Canadian citizen. He has a stepdaughter he helped take care of. Also, both Hajivand and his wife converted to Christianity. Hajivand says he will be jailed or worse if he goes back to Iran where apostasy is a punishable crime. He points to Canada’s own relationship with Iran which is near non-existent. The Canadian government has been aggressive in highlighting Iran’s human rights record and shut down the Iranian embassy in Ottawa in 2012. But Canada’s own animosity toward the Islamic Republic has not prevented it from deporting dozens of people back to Iran.

Canada needs alternatives

Canada has long had a reputation as a desirable destination: a relatively open society, strong social safety net including free health care, reasonably good public schools, and a safe place to raise one’s family. Immigration was fairly straightforward and governments were generally interested in keeping families together so sponsoring elderly parents was not difficult. Acquiring citizenship was not hard.

In the last decade Canada has seen all kinds of changes to policies affecting how people come to Canada, who gets to stay, and how easy it is to get rid of them. It’s become tougher to immigrate and takes longer to get citizenship. which, thanks to recent legislation, has also become easier to lose.

The most egregious part of this system is immigration detention. Already vulnerable people are squirreled away, often in maximum security prisons, with little access to the outside world. It is difficult to know about the conditions in which detainees exist because there is no transparency. Even the number of deaths in custody are unknown since CBSA does not have to report them publicly. Unless there are people on the outside who can make noise, a death will probably remain hidden.

In December of 2013, a Mexican woman named Lucia Vega Jimenez hanged herself at the immigration holding facility at Vancouver’s airport. She had been taken into custody after she was stopped by transit police for an unpaid fare and was turned over to CBSA. Her death remained unknown for a month and only came to light because activists within the Mexican-Canadian community made it public. An inquest into her suicide in 2014 recommended a variety of changes including better access to counsel and mental health support for detainees.

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But immigration activists are clear that the fundamental problem is detaining migrants in the first place and that Canada’s government must work to come up with alternatives to detention while people await resolution to their cases including deportation.

As the Jimenez case continues to be cited as an example of why the system needs to change, news came of another death. On June 11^th, a man by the name of Abdurahman Ibrahim Hassan, 39, died in hospital after being restrained by CBSA officers. He originally came from Somalia, the youngest of eight children, and lived in Canada for years. He had spent the last four years in immigration detention at the Lindsay Superjail. Hassan’s family says he had suffered from diabetes and poor mental health for a very long time. He was in and out of trouble with the law. The details at this point are scant. He was taken to the hospital for treatment, became agitated, and died while restrained. The CBSA will not release any details even to Hassan’s family.

On June 19, No One is Illegal, an immigration activist group, posted a message on its Facebook page: “We can now confirm that ALL immigration detainees at Lindsay’s maximum security prison are refusing food to mark Abdurahman Ibrahim Hassan’s death in custody last week. That is over 100 people across 5 ranges that aren’t allowed to communicate between each other.

The message went on to read, “A detainee, 59 years old, a resident of Canada for 10 years and who has been in detention since December 2014 issued this statement: “I want to draw attention to the hopelessness felt by the people who are detained and who are at the mercy of the government…It contributes to hopelessness because we are fighting things we cannot win.”

Naheed Mustafa is an award-winning writer and broadcaster. Her work has been published in Foreign Affairs, The Atlantic Monthly, Foreign Policy, and Toronto Life among others. Her broadcast work has been heard and seen on a variety of outlets including CBC Radio, CBC Television, the BBC, and Radio Netherlands. She is currently hosting a nationalFormat documentary series on CBC Radio called The Doc Project.