Interviewed by Felix
You had a very unique experience when it came to the government rejecting your initial claim for permanent residency. Can you summarize what happened to you?
J: It was a unique experience, but this experience happens to many immigrants and refugees who come to Canada and are looking for a place safe to live. In 1997, my wife and I came to Canada from El Salvador. We were seeking refugee status. There was a lot of violence going on in El Salvador at the time. The war had ended when peace agreements were signed in 1992 but there was still a lot going on. At the time, I was studying at the University of El Salvador and I was very involved in activism. I was a student union member and because of my role at the university and my relationship with the FMLN (Frente Farabundo Martí para la Liberación Nacional), I felt that our lives were in danger. In 1997, we arrived at the Canadian border and made a refugee claim and lived in Canada as claimants.
In 1999, we had a hearing, and in 2000 it was rejected on the basis that (the peace process was consolidating) El Salvador was now seen as a democracy. We appealed the decision. While all of this was happening, my son who was born in 1997 in Canada. (my son who was born in 1997, he was diagnosed with autism in 2002) Eventually he was diagnosed with autism and we submitted a humanitarian and compassionate claim to stay in the province because of my sons’ situation. In 2004 our claim was approved in principle. This means that it was approved, but we still had to wait for initial paperwork to be fully recognized as permanent residents.
We were so happy. What we didn’t know was that there were some issues with our claim being discussed by CBSA (Canadian Border Services Agency). We waited and waited. 4 or 5 years went by with us being approved in principle, but no paperwork had gone through.
In 2009, I got a phone call from a CBSA officer who wanted to interview me. I was so happy when I got the phone call. I thought that the purpose of the interview was to finalize the application. I got there and he told me that he was going to interview me and that it was going to be recorded. He started asking me a lot of questions about my association with the FMLN. When the interview was done, I asked him what was going to happen next. Throughout the entire time, we had no status, so we didn’t have access to healthcare. I wanted to know what the process would be to obtain that.
During this time, my mother was in the United States and was really sick. I wanted to know if I could get permission to go visit her even though our papers were not officially granted, however the officer didn’t really answer my question. I left the interview feeling really weird. Months went by and eventually we were told to appear for a hearing. During this time, we received documents from the government stating that FMLN was a terrorist organization and because I was a member; I was inadmissible into Canada. It was implied that I was also a terrorist.
My wife didn’t show me the documents right away because I was going through a really hard time with my mom. I couldn’t see her and she was terminally ill. I was in an emotional crisis and my wife didn’t want to add stress to my life.
Eventually, she told me and I was in shock. It didn’t make any sense to me. How could they deny my refugee claim? The FMLN was a political party at this time. How could they state that El Salvador was a democratic country yet claim that a political party was terrorist organization? I couldn’t believe I felt joy during my interview and now was being accused of being a terrorist. The officer didn’t even consider the information from the interview. He broke so many procedures but that’s another story.
The purpose of the hearing was an admissibility hearing in January 2010. I couldn’t afford a lawyer so I decided to represent myself. I knew that they wouldn’t listen to me due to the fact that I didn’t have status; I had no rights. In the end, I asked my pastor if he could come and represent me and he did.
We brought our submissions to the hearing. I remember I had a huge package of documents with me but I didn’t know that this wasn’t the procedure. They ended up hearing the information anyways and at one point, we actually thought they were going to rule in our favour but they didn’t and he issued a deportation order.
When did you decide you were going to organize against your removal and the reasons why they denied your application?
J: While all of this was going on, I spoke to a teacher from my sons’ school and she actually helped to put me in contact with a reporter with CTV who I spoke to about my issues. At this point I didn’t want anything published because I was worried it would influence the decision made by the minister.
In May 2010 I went to Vancouver because a professor from UBC had arranged for me to meet with a lawyer that could potentially help me. During this time, I was taking my decision to federal court for what’s called a judicial review. I went but I was surprised that the lawyer had not even read my documents. I was panicking because I had to make submissions soon and didn’t know if what I was doing and so he was able to help me quickly. In a matter of minutes, he was able to summarize everything and point me in the right direction.
By the end of August, my case was reviewed and dismissed. It was at that point that I decided no; there is no justice in Canada. I had to go to the media. Due to the media coverage, I got in touch with some students who were studying at the University of British Columbia. I met with them and they had great ideas.
We decided to start a campaign by making videos to create awareness and get some sort of attention. That’s how the “We are Jose” campaign got started. We had a lot of influential people talk about it and spread the word. I reached out to many different organizations. Some were useful and some gave me advice that didn’t make sense.
In 2011, I my son and I went on a cross-country tour to raise awareness on the issues I was facing. We hitchhiked from BC all the way to Ottawa and spoke with thousands of community members along the way. We wanted to deliver a letter to the ministers to let them know about the situation and for them to take action. Through the speaking tour, we got so much support from different communities. People helped us get from place to place. Our campaign reached many Salvadorans living in Canada and people donated funds. The donations were enough for me to retain another lawyer in Toronto to help with my case.
In 2011, while we were in Ottawa, I was presented with the opportunity to meet with a man named Juan Jose Garcia who at the time was the Vice Minister for Salvadorans living abroad. He had a speaking event planned and we were scheduled to meet after. I decided to attend the speaking event. At the speaking event somebody asked him about my case and what the El Salvadorian government was going to do about it. His response was that the El Salvadorian government respected the law in Canada and then he said that if there were issues with any El Salvadorians, in terms of their rights, the government would intervene. However, he said my case was not an example of that. When he said that, the blood went all the way to my head and I stood up and I started to scold him. I said “What are you saying?” They are not accusing me of being a terrorist on my own! They are calling me a terrorist because I was part of the party that is now in office. They are calling the whole government terrorists!” I was so mad at this official! I couldn’t believe that he said my case didn’t have any merit for the El Salvadorian government to intervene. Needless to say, after this I did not attend the schedule meeting with him.
After that, we went to the El Salvadorian embassy and spoke with the ambassador briefly. My son and I decided to continue with the tour. We didn’t end up being able to give the letter to anyone in Ottawa. At that time, the cabinet was found to be in contempt and Harper ended up having to call an election. Everything was a mess in parliament by the time we got there, so we just decided to continue to Montreal to keep speaking. After Montreal, we went back to BC.
People didn’t really understand my case. It wasn’t just that I was being removed after being accepted; or even that I was being accused of being a terrorist. It was also that the group of people they had labelled as “terrorists” was democratically elected in El Salvador and was in government. In Canada, the FMLN is not listed as a terrorist “entity”, so none of it made any sense.
You ended up in taking sanctuary to protect yourself, what was behind this decision?
The reason I chose to go into sanctuary was because the CBSA was moving to enforce my deportation order. Sanctuary was my only option in order to be able to continue the struggle to achieve some justice for my family. I knew that if I was deported the issue was going to be swept under the rug. The only way for me to continue fighting was if I was still in Canada so sanctuary was my only option.
In September 2013, I drafted a letter that was directed to CBSA. The letter was asking CBSA to assign my case to an officer who could make a report to the minister so that he could make a decision on my application. This ended up being a mistake. When I gave the letter, I didn’t know that the report that I was requesting had already been made in 2010 and had been sent to the minister. When I submitted the letter to CBSA in Vancouver, they didn’t know what to do. The report had already been made so they couldn’t assign it to another office. I ended up receiving a phone call from my lawyer who told me that CBSA wanted to have an interview with me. I asked my lawyer to find out what the interview was about. He said that the interview was to fill out a travel documents request and to discuss removal.
I told my lawyer that I would go to the interview but that I would not be answering questions, I would be the one asking questions. The lawyer told me it wasn’t good idea to try to turn the table around and start asking questions. That was the precise moment I decided that I wouldn’t go to the meeting and would go into Sanctuary instead.
I already had a church I could go to. I had been attending the same church with my family since 1993. It was not a problem for them to decide to grant me sanctuary and to accommodate me. When I approached my pastor about it, he told me it wasn’t even a question. They had discussed it amongst the church years before when they found out about my situation and had already decided they would accommodate me if and when I needed it.
I was fortunate to be in that situation. I know there are a lot of other people who don’t have a church they can go to. There are a lot of churches that may want to house someone but they don’t have the facilities or the space. Some others might have pastors who don’t have the vision of sanctuary. Many think offering sanctuary to someone is an illegal act, when in reality it’s not. Sanctuary has been a tradition for centuries. CBSA itself has stated that they won’t break sanctuary.
In fact, when I went into sanctuary in 2013, CBSA stated that the only way they would break sanctuary would be if there was an issue involving criminality with someone’s case or if someone had an issue of national security. It’s kind of funny that they never came into the church because although they were accusing me of being a terrorist, they were also conceding that I was not a threat to Canada. They were basically saying that the allegations against me were unfounded.
While some CSIS (Canadian Security Intelligence Service) and CBSA members thought I was a threat, others didn’t. It highlighted that the immigration system is basically a lottery. It really depends on the officers you get and what their opinions are about your case. If the officer is close minded or doesn’t have any background on the social realities of the country that the person is coming from (like El Salvador), they will decide to deport that person. Once that decision is made there is no turning back. The person has to go through a process to remedy that decision.
I went into sanctuary in October 4th 2013. Something interesting happened; I had a stay of deportation hearing on October 29th. I was in the church and I was negotiating with CBSA to go to the hearing. The hearing was five minutes long. When a deportation order is given it is supposed to be enforced right away, but they had been trying to deport me for years with no success, which did not look good on them. On top of that, they had no justifiable reason as to why they should be separating me from my wife and kids. So, the stay of deportation was actually granted.
After the hearing, my lawyer contacted me and said that I could leave sanctuary. In order to leave sanctuary and officially cancel the arrest warrant, there were many requirements that I had to fulfill. This involved reporting to CBSA, paying a cash bond, enforcing the warrant and then releasing me. However, they were trying to also get me to sign a letter saying that I would agree to never access sanctuary again under any circumstances; which I refused to agree to. It made me not trust them. If I had signed that letter, I would be setting a precedent and messing everything up for future individuals who need access sanctuary multiple times.
I didn’t leave the church. There were no guarantees that they wouldn’t deport me. In 2014, there was another hearing concerning my judicial review. The review was granted and CBSA came back to me and asked for certain conditions in order to cancel the deportation order. Again, they asked for the same letter saying I would never access sanctuary again. Both times the offers had been made orally. In 2015, they did it again. This time though I asked for the offer in writing but still did not go through with it.
The whole time I was in sanctuary, they were watching me. One time, there was a person that came into the church and he pretended to be drunk. I found him lurking around and confronted him. Someone else at the church helped me walk the the person out and when we got to the entrance, he got violent. He started screaming and saying that people like me were criminals. I think he was hoping was that we would call the police. Had we called the police, we would have “invited” officials into the church and that would have given them grounds to arrest me. I also noticed there were strangers coming into the church. People we had never seen before. I knew they were CBSA officers trying to see what the situation was.
Finally, in December 2015, the Minister of Citizenship and Immigration, John McCallum, made a decision regarding my application. It was hilarious. The officer who called sounded like a telemarketer saying that I had won a cruise or something. The call was all “Congratulations your application has been approved!”. I couldn’t believe it. This was in December 2015 and meant that I could leave the church. I didn’t actually leave the church right away. It was very intentional. For so many years so many people had supported my family and I. I didn’t think it would be fair to leave the church without everyone who had shared the burden of my case knowing what had happened. I let them know first and then I left the church. It was crazy. When it actually came time, my children actually had to push me out of the church. It was very hard for me to leave since I had been there for so long. The step that I had taken out of the church was the hardest step that I had ever taken. Once I left, I never wanted to go back. I think when I left, I said out loud, I never want to go back into that church again!
It was such a hard thing. If you are making the decision to take sanctuary I want to tell you; don’t take it lightly. It’s important to think it over. First, do you have the strength to be in the church all the time. Do you have the support of the church? Is there going to be opposition to you being there? If there is going to be opposition, it might not be something that makes sense. If there are issues, explore other options; some people just go into hiding/underground. Sanctuary, as much as the option is there; is like a prison. I was in a little room and I had to be careful with how I interacted with other people. You are sharing the space with so many different members of the community because it is a church. Sanctuary, in essence, is a last hope for someone who is fighting a deportation order. It was my last hope. I understood that if I was deported, the moment I left Canada, my file would have been buried and no one would have done anything about it. Sanctuary was the last option and the only option I had to fight for my rights and the rights of my family.
You’re now out of sanctuary but your case is not over. Can you summarize where everything is at now?
J: As I said, the Minister made a decision in 2015, however CBSA didn’t make it easy for me. I know they wanted to give me a hard time because I refused to meet their terms for so many years. This all started in 1999 and now it’s 2019! I waited for my permanent residency and got approved in 2015. They were supposed to issue me a work permit and a temporary residency permit but they never did. When I got my permanent residency in 2016, decided that they didn’t have to send it to me because I became a permanent resident. However, now that I am applying for citizenship, having those documents matter, so I am still dealing with that. I am trying to make sure that none of these issues from the past resurface and affect me trying to get citizenship or anyone else in this situation. I have been litigating since 2013 regarding the issue of naming the FMLN as a terrorist organization as an entity and rendering me inadmissible on that ground. Hopefully it will get resolved soon. I’d like to go back to school and continue to study law. I was a student at University of Victoria for two years, but because I had been litigating with the government, it was impossible to do both. It was too much work. There were too many processes going on before the courts and for the most part, I was doing it all myself; learning how to draft affidavits and motions and appearing in court. So hopefully this will all wrap up, but of course the ministers don’t want to set a precedent against them on this issue, so they are fighting back.
How can others follow up with your case?
J: Since left the church, I tried to keep a low profile so that what is posted in the media doesn’t interfere with the case. However, at this point I think it is necessary to get back in with the media. Just recently, the attorney general brought a motion around me being a vexatious litigant and the federal court agreed with the motion. Basically, when someone is accused of being a vexatious litigant it is because that person is bringing forth an action solely to harass the other party through the legal action. They are saying this because I brought forth so many different proceedings. Right now, if I want to start a new proceeding, I need to ask for leave from the courts before starting something and if I want to continue with proceedings that have already started, I also have to ask for permission. Regarding the proceedings that are still before the courts; the party that needs to take the next chronological step are the ministers or the courts. So, it’s not on me to be asking leave from the court to continue now. Since they have submitted this, they basically want to finish the litigation without having to discuss the issue. The ministers have not complied with statutory provisions of the law. They don’t want to admit that they made a mistake so they just want to get it out of court any way that they can.
Just recently, the Information Commissioner confirmed that a complaint that I submitted in 2014 about the Minister of Foreign Affairs withholding information is well-founded and a report was issued based on that. According to the law, I should have had the opportunity to file for a review of the Ministry of Foreign Affairs to grant me access to information. However, because of the declaration of vexatious litigant, the court has decided to deny that I should start that proceeding even though I have been granted the right. So now I have to be thinking about how I am going to navigate all of this. I want my federal court case to continue and close so I can go on with it and pursue schooling and finally maybe living a normal life.