Thursday, November 22, 2018

Tuesday, November 20, 2018

SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST ARTICLE ON IMMIGRATION AND CRIMINAL CONVICTIONS

I am quoted extensively in today's National Post

https://nationalpost.com/news/canada/judge-gave-excessively-light-sentence-to-avert-deportation-of-refugee-who-threatened-to-kill-police-appeal-court#

Judge gave excessively light sentence to avert deportation of refugee who threatened to kill police: appeal court

The case shows how judges weigh the severity of crimes by non-citizens against the consequences of jail time for those who could be deported

The Manitoba Court of Appeal found a lower court judge "imposed an artificial sentence" to prevent Mustaf Ahmed Yare from being deported.

Maura Forrest
Maura Forrest
November 19, 2018
8:22 PM EST


OTTAWA — The Manitoba Court of Appeal has ruled a judge gave an excessively light sentence to a 23-year-old Somalian refugee to prevent him from being deported, after the man rammed his car into a police vehicle and threatened to kill the officers who arrested him.

The court ruling Oct. 31 increased Mustaf Ahmed Yare’s sentence to more than 13 months, from five months and 25 days. In their decision, the judges found the longer sentence “may result in his deportation,” but was necessary because the sentencing judge “failed to impose a sentence that was proportionate to the gravity of the offences.”

The case sheds light on how judges weigh the severity of crimes committed by non-citizens against the consequences of jail time for those who could be deported, after Harper-era changes to immigration rules attempted to make it easier to remove criminals.

Yare’s family is Somali, and he was born and raised in a refugee camp, his lawyer said. He and his family moved to Canada in 2009 and he lived with his parents, according to the appeal court ruling. In September 2017, he was arrested after he refused to pull over during a traffic stop, instead accelerating, ramming into the police car and causing it to stall. He then drove off at high speed with other police cars chasing him, crashed into a metal sign post and fled on foot.

I'm a real gangster and you will die
 
After he was arrested, according to the court decision, he told police officers: “I’m going to get my gang and I’m going to find you and kill you. I’m a real gangster and you will die. Trust me, you fucking goofs.” Less than two weeks after he was released on bail, he was arrested again while in breach of his curfew. According to the ruling, he was already on probation at the time of his arrest, and has a “lengthy and related criminal record.”

Yare pleaded guilty to charges including fleeing from police and uttering threats. During his sentencing hearing, the judge found he “ought to be jailed for about a year for these charges,” but ultimately decided on a much shorter sentence — five months and 25 days.

Permanent residents can lose their status and be deported from Canada if they’re convicted of a crime with a possible jail sentence of 10 years or more, or sentenced to more than six months in prison. A sentence of six months or longer also strips them of their right to appeal deportation.

Knowing this, the sentencing judge decided to go easy on Yare. “I am not inclined to subject you to deportation hearings, but you need to know how lucky you are,” he told him.

The appeal court, however, found the lower court judge “imposed an artificial sentence” to prevent Yare from being deported, and raised his total sentence to 13 months and 10 days, acknowledging the punishment “will affect his right of appeal … and may result in his deportation.” Yare had already served the jail time prior to the appeal hearing.

Yare’s Winnipeg-based lawyer, Edmond Murphy, said it’s hard to say whether his client will be deported imminently or not, as Yare has since been arrested again and is back in custody on charges of assault with a weapon and uttering threats.

I am not inclined to subject you to deportation hearings, but you need to know how lucky you are

 
The Supreme Court of Canada has ruled that judges should consider immigration consequences in sentencing, said Sergio Karas, an immigration lawyer and analyst, but the punishment must still fit the crime.

It’s unfair, he said, for a non-citizen to get a much lower sentence than a citizen for the same crime, simply to avoid deportation. “You can’t have that, because otherwise it’s like playing favourites.”

But Toronto immigration lawyer Lorne Waldman said the right to appeal deportation orders has been unfairly restricted over the years. It used to be that anyone could appeal a removal order, he said, but in the early 2000s, that right of appeal was denied to those sentenced to more than two years. Under the Harper government, that was expanded to anyone sentenced to more than six months.

“I think there should always be the right to a review,” he said, arguing that individual circumstances like how long someone has been in the country and whether they have children need to be considered.

“I don’t think it’s unreasonable for Canada to consider taking action against a non-citizen who has violated the criminal law, but I think the changes that were brought in by the former Conservative government were very extreme,” Waldman said. “That’s why you’re seeing judges imposing sentences of less than six months.”

However, Karas said the Harper government changed the rules because some judges previously sentenced non-citizens to two years less a day to avoid deportation, and there was public outrage that people with lengthy criminal records weren’t being removed from the country. “Let’s face it,” he said. “For somebody to be sentenced to six months of incarceration, it’s got to be a pretty heavy-duty offence.”

Like Waldman, Murphy believes anyone should have the right to appeal a deportation order, regardless of the length of their sentence. He said Yare’s parents support him and want him to be able to stay in the country.

But beyond that, Murphy said, cases like these prove “that when people immigrate to Canada, they should take steps to become Canadian citizens.” He said it’s not uncommon to see people who came to Canada as children lose their status after being convicted of a crime because they never gained citizenship. “And (they) end up getting deported to a country where they’re now detached from both the language and the culture.”

Wednesday, November 7, 2018

SERGIO R. KARAS CHAIRS PANEL AT ABA CONFERENCE IN MEXICO CITY

Thank you to my great panelists today at the ABA Section of International Law Conference in Mexico City on"The Future of Labour Mobility after NAFTA negotiations: Where do we go from here?"  Great Job!

Sunday, October 21, 2018

SERGIO R. KARAS CO-CHAIRS AILA NORTHERN BORDER IMMIGRATION CONFERENCE

Thank you to my panelists and to the AILA Upstate NY Chapter for a successful "10th Annual Canada-US Northern Border Immigration COnference"

SERGIO R. KARAS SPEAKS AT IBA ANNUAL CONFERENCE IN ROME


I was honored to speak at the IBA Annual Conference in Rome in the panel "Practice Management for Immigration Lawyers: 60 tips in 60 minutes"

Saturday, August 25, 2018

SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST FRONT PAGE STORY ON THE BORDER

I  am quoted in today's National Post front page story on the border crisis and the collapse of the  refugee determination system https://nationalpost.com/news/politics/canadas-backlogged-asylum-system-is-not-sustainable-immigration-minister-says-in-leaked-letter





Canada's backlogged asylum system is 'not sustainable,' immigration minister says in leaked letter

The language is unusually strong for Ahmed Hussen, who speaks often about Canada’s 'strict and efficient immigration and border-control system'



What happens when asylum seekers cross the border into Canada?2:39

OTTAWA — The number of people seeking asylum in Canada is rising “far beyond” what the existing system can handle, according to a recent letter from Immigration Minister Ahmed Hussen obtained by the National Post.
“Without changes to improve efficiency and productivity of the asylum process, wait times and backlogs will only continue to grow,” Hussen writes in the Aug. 14 letter, addressed to the Canadian Bar Association. “This situation is not sustainable, nor is it fair to the people who need Canada’s protection.”
The language is unusually strong for Hussen, who speaks often about Canada’s “strict and efficient immigration and border-control system,” including in an op-ed for the Toronto Star last month.
His recent correspondence with Barbara Jo Caruso, chair of the immigration law section of the Canadian Bar Association, highlights a sense of urgency as Hussen considers how to reform the backlogged asylum system. But it gives little insight into what changes the Trudeau government is considering following
a report released in June that recommended a major overhaul of the Immigration and Refugee Board (IRB), the arm’s-length body that handles asylum claims.
“While the department has carefully analyzed the findings and recommendations of the report, it would be premature to speculate on any future changes to the asylum system,” Hussen writes in the letter.
Sergio Karas, an immigration lawyer and analyst, called Hussen’s letter “an admission of failure … by the Liberal government,” and said the existing system wasn’t designed to accommodate the current volume of asylum claims.
“I honestly do not understand how it is that the federal government can look the people of Canada in the eye and say that the system works,” he said. “Because the system has collapsed.”
Last year, Canada saw a dramatic uptick in asylum seekers entering the country between official border crossings, particularly in rural Quebec. More than 20,000 irregular asylum seekers entered Canada last year, and more than 12,000 have in 2018, though the rate of new arrivals has slowed considerably since its peak last summer.
A spokesperson for Hussen told the Post the minister recognizes the need to increase the IRB’s capacity, but said the problems pre-date the recent influx of asylum seekers. In fact, Hussen was instructed in his February 2017 mandate letter to improve Canada’s asylum system.
“We inherited a massive backlog of asylum claims after a decade of short-sighted and damaging policies under the Harper Conservatives,” Mathieu Genest said in an email statement. “This situation has only been exacerbated by the increase in asylum seekers, which has been growing since 2013.”
Genest said the government invested $74 million in the 2018 budget to help the IRB finalize claims more quickly, in part by hiring 64 new claim adjudicators and support staff. Still, IRB data shows there were more than 55,000 refugee claims pending as of June 30.

Immigration Minister Ahmed Hussen Chad Hipolito/The Canadian Press

An independent review of the quasi-judicial IRB published in June suggested a number of reforms, including the creation of a new refugee protection agency that would report directly to the immigration minister. A second option would maintain the existing structure of the asylum system, but add a new oversight body.
Hussen wrote Caruso in response to a letter in June, shortly before the review was released, calling on the government not to do away with the IRB’s independence. “The IRB stands as a model around the world for independent refugee determination, separate from other arms of government,” she wrote.
In his response, Hussen said the government will ensure “that claims are reviewed by impartial and qualified decision makers,” but gave no other indication of what reforms are coming.
In a follow-up letter, dated Aug. 15, Caruso again urged the government not to create a new body that would “bring the refugee determination process under further government control, undermining the independence of IRB decision-making.”
Instead, she suggested other reforms, including improving the legal aid system to ensure refugee claimants can access lawyers, and filling the “high number of vacancies” in the IRB divisions dealing with refugee claims and appeals.
She also suggests the IRB should “adopt new technologies,” such as using email to correspond with immigration lawyers, which it does not currently do. “Given the widespread acceptance of email by businesses, governments and other non-governmental organizations,” she wrote, the IRB’s “practice is anomalous (and) slows the process considerably.

Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA