Handbook authored by: Michele Donne Madeline Murray Stephany Codd Anna Barbosa April 2014

And that is why I swore never to be silent whenever and wherever human beings

endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented. Sometimes we must interfere. When human lives are endangered, when human dignity is in jeopardy, national borders and sensitivities become irrelevant. Wherever men or women are persecuted because of their race, religion, or political views, that place must at that moment become the centre of the universe. Elie Wiesel

TABLE OF CONTENTS

Section One: Who

This section will introduce you to Jose Figueroa and tell his story.

Section Four: Why

This section will explore the whys behind Jose Figueroas case. To do this, three questions will be answered: 1. What is meant by the securitization of migration and how is this connected to Joses case? 2. What laws govern immigration in Canada and why is Jose considered inadmissible under this legislation? 3. What problems and contradictions does Joses case shed light on and what are the implications for something? The Securitization of Migration In order to fully understand Joses plight, we must first understand the context in which Joses case is playing out. In order to explore why Jose is at risk of being deported, the changing nature of immigration policy in Canada, the problematic nature of the existing legislation, and the connections that these issues have with the case of Jose Figueroa will be discussed. The history of immigration policy in Canada has always included mechanisms to distinguish between desired and undesired classes of migrants (Crocker et al., 2007). In the past, immigration policy and discourse have been used to separate those immigrants who are believed to be able to bolster the Canadian economy from those immigrants who are seen as threats to the cultural, economic and political vitality of Canada (Macklin, 2001). In recent years, there has been a shift towards greater securitization of migration. This means that the threat immigrants are seen as embodying has shifted from taking away jobs to taking away lives (Crocker et al., 2007). As migration becomes

increasingly securitized, immigrants are more often being represented as a threat to the security of Canada.

Kim Rygiel, in her award-winning book Globalizing Citizenship, explains that by looking at migration through a national security lens, certain bodies are perceived as threatening, disruptive, and risky and therefore in need of being securitized, regulated and controlled (2010, 5). Using and leveraging this perceived threat as justification, Canadian immigration policy has become a mechanism of exclusion that applies tighter immigration controls and citizenship policies preemptively and selectively to certain groups of migrants (Aiken, 2001). Jose represents just one of these migrants who are caught up in the injustices of the securitized, strict and selective immigration policy in Canada. These individuals are pushed out of the boundaries of citizenship or even the physical boundaries of the Canadian nation, their calls for justice ignored. Prior to analyzing the particulars of Canadian immigration policy and law, how and why the securitization of migration has emerged will be explored.

How is it produced? As migrants mobility has become increasingly constricted, the ease and speed at which powerful words and discourses travel across and between borders has expanded. The words risk and security began to enter into the discourses surrounding migration even before the events of September 11, 2001, but it wasnt until after these events that the securitization of migration transformed the

migration landscape (Ibrahim, 2005). The positioning of migrants as a dangerous security threat to nations in the global North can be seen as the outcome of the powerful act of the production of truth via the construction and functioning of a discourse (Foucault, 1980). Michel Foucault expands on this notion by asserting that the creation of knowledge and truth through a discourse is an exercise of power, inasmuch as it is this knowledge and truth that then informs, produces, and is subsequently reaffirmed through government policies and laws (1980, 94).

Indeed, in the case of the securitization of migration, it is the exercising of power by the Canadian government, Citizenship and Immigration Canada, the Canadian Border Services Agency, and national media that has resulted in the discourse that has transformed migrants from being portrayed as potential voting citizens to a threatening and dangerous other (Rygiel, 2010). By locating terrorism almost exclusively in the legislation regarding immigration, these agencies have institutionalized in the law the migrant-as-a-threat discourse (Macklin, 2001). This rapid reconfiguration of the lines of inclusion and exclusion aligns with the common feature of neoliberal ideology that creates discourses that transform those who were once seen as victims into victimizers, individualizing blame rather than understanding the deeply flawed nature of contemporary economic and political systems and structures (Abu-Laban, 1998).

Why is it produced? Maggie Ibrahim asserts that the migrant-as-a-threat discourse is an extremely powerful one, that is and will continue to undermine migrants civil and human rights while privileging the rights of Canadian citizens, (re)actualize and reify a form of New Racism which uses cultural difference as a criterion for exclusion, and allow global powers to retain control over the existing social and productive relations that make up the capitalist world order (2005, 165). While it is clear that migrants, especially those journeying from countries in the global South, are at the losing end of this discourse, it is also important to understand why it is produced and who stands to win from the production and dissemination of this discourse.

Those who derive power from their position governing and maintaining the working of the neoliberal, capitalist, world system are greatly threatened by migration and the movement of workers, ideas, and capital between the global South and North (Ibrahim, 2005). Migration tends to blur the boundaries between the North and the South, rendering the economic and political geography increasingly fluid. By producing and disseminating discourses that place migrants as security threats to the host country and thus influencing host countrys antiimmigration policies, global powers are grasping to maintain control over the capitalist world system by ensuring that the economic, geographic, social and political boundaries between the core and the periphery are maintained (Hardt & Negri, 2000, 245). Indeed, the capitalist, neoliberal world system effectively

depends on the separation and distinction between core and periphery (Ibrahim, 2005). Thus, those who stand to win from the securitization of migration are those who occupy powerful and influential positions in the core of the current capitalist world order.

Nandita Sharma and Kim Rygiel also draw links between the processes of globalization and securitization. The liberalized, globalized economic system requires open and fluid borders that enable the free movement of goods, information and services across the globe (Rygiel, 2010). Contrastingly, the statecentric system of nationhood and national security requires fixed borders and welldefined populations (Rygiel, 2010). This paradox generates multiple tensions that cause national governments to try to assert the sovereignty they must give up as part of a globalized economy by exercising strict control over who may or may not enter their borders and call themselves citizens. In an increasingly globalized world, nation states are attempting to uphold and justify the architecture of the system of national sovereign states by enforcing their rights to determine who can enter their borders and what conditions will be imposed upon those who enter (Sharma, 2011). Barry Hindess proposes a useful method of understanding the contradiction between the practice of opening borders for the movement of goods and services while closing borders for movement of people. He states that both processes are parts of the one regime of population control in fact, of a broadly liberal international regime (Hindess, 2003, 24). Thus, we can see that the securitization

of migration is also a method for nation states to attempt to control their populations, in response to the erosion of their control over their economies.

Although the securitization of migration has diverse and far-ranging implications, one impact that is central to the case of Jose Figueroa is that the discourse of securitization privileges the security of the state and its citizens at the expense of the human security of migrants (CCR, 2003). Human security is a concept that places the individual, rather than the state, as the focus of security. It focuses on the protection of individuals human rights as well as their entitlements to a high quality of life and freedom from fear (Freitas, 2002). In order to protect the security of Canada and Canadian citizens, Jose and many others like him must face the conditions of tangible human insecurity (Macklin, 2001). They are being denied the social, political and material rights of citizenship, discriminated against, disempowered, and deported (Sharma, 2011). How can it be that our rights as Canadian citizens supersede Joses fundamental human rights to liberty and security of person, and to freedom of opinion, expression and association?

It is clear that through the securitization lens, the principles of security and human rights are applied selectively and mediated by citizenship, race, political affiliation, and other markers of difference. It is an oppressive framework that results in the control, exclusion and oppression of those who are positioned at the intersection of various axes of oppression: class, race, gender, sexuality, religion, etc. In the next section, we will look at how the securitization agenda is present in the

immigration law in Canada, and how this framework is employed in the legislation to authorize and justify state actions against immigrants that would be considered undemocratic, unconstitutional and unjust if performed against citizens (Sharma, 95). In an analysis of the Anti-Terrorism Act and the Immigration and Refugee Protection Act, pay close attention to how the law is designed not to protect us from the enemy within our borders, but to produce this enemy within our borders and justify their swift removal (Macklin, 2001).

The Anti-Terrorism Act & The Immigrant and Refugee Protection Act In the months following the tragic events of 9/11, the Canadian government passed two pieces of legislation that were designed to give the federal government an enhanced capacity to protect the security of Canada (Roach, 2005). In 2001, the Anti-Terrorism Act (also known as Bill-36) was passed, followed soon after by the Immigration and Refugee Protection Act (IRPA) in June 2002 (Roach, 2005). The Anti-Terrorism Act amends 10 different statutes and ratifies 2 different UN conventions on the financing of international terrorism, toughens penalties for those suspected of committing a terrorist act, and reinstates preventative and investigative hearings (Daniels, 2001; MacKinnon, 2013). The naming of the Immigration and Refugee Protection Act is ironic, as the legislation does more to protect citizens rights and security than to protect immigrant and refugee rights (Burman, 2006). The changes introduced in the IRPA move in two directions. On one hand, it caters to market considerations by facilitating the easy admission of skilled, highly educated migrants into Canada (Crocker et al., 2007). On the other, it aligns

with the security agenda by restricting the ability of other migrants to enter Canada and broadening the grounds for excluding certain groups of migrants entirely (Crocker et al., 2007).

To do this, the IRPA broadens the ground for criminal inadmissibility, restricts access to rights for those who fall in more serious criminal categories and introduces secretive security certificate procedures that will result in the detainment and deportation of non-citizens based on very low standards of proof (Crocker et al., 2007). In this way, the IRPA denies access to justice to those most in need of fair and proper decisions, removes existing fair decision-making and accountability in matters of deportation and sponsorship, removes existing procedures that ensure a full consideration of circumstances and a proper balancing of interests, and gives immigration officers broad powers to determine inadmissibility (Arakelian, 2004, 63). Many of these provisions have been criticized as being unconstitutional. The changes introduced in the IRPA significantly increase the risk of institutionalizing religious and racial profiling, and compromise the international reputation of Canada as a humanitarian nation (Thompson, 2013). In the next section, we will look closer at the section of the IRPA under which Jose Figueroa has been found inadmissible, Section 34.1

Definition of Terrorism Under Section 34.1 of the IRPA, refugees and immigrants are inadmissible to Canada on security grounds for engaging in terrorism or being a member of an

organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism (IRPA, 29-30). Nowhere in the IRPA are the terms terrorism, member, or reasonable grounds defined and operationalized, instead, the IRPA draws on the definition of terrorism in Canadas Anti-Terrorism Act (CCPA, 2001). According to Bill C-36, terrorism can be defined as an act or omission committed inside or outside Canada for political, religious or ideological purpose or cause with an intention to either: intimidate the public with regard to security, including its economic security, or to compel a person, government or national or international organization to do or refrain from doing any act, and with an intent to: cause death or serious bodily harm, endanger life, cause a serious risk to the health or safety of the public OR cause serious interference with an essential service, facility or system (CCPA, 2001, 3).

The attempt to define terrorism in a legal context is an unsuccessful one, as any definition of terrorism will be based on a political position and situated within a specific cultural, social and tactical context (Kaushal & Dauvergne, 2011). The above definition has been argued to be so general and wide reaching as to be unconstitutionally vague. The unconstitutional nature of using such an undefined term to deport non-citizens has been argued in the Federal Court of Canada in various cases, most notably Suresh v. Canada and Ahani v. Canada. The Supreme Court refused to find the term terrorism unconstitutionally vague. Mr. Justice Denault, a member of the Court proceeding over the Ahani v. Canada case, stated this about the statutory interpretation of terrorism:

In my view, since Parliament has decided not to define these terms, it is not incumbent upon this Court to define them ... I do not share the view that the word must be narrowly interpreted. I am rather of the view that it must receive a broad and unrestricted interpretation I agree with counsel for the Respondent that the word is not capable of a legal definition that would be neutral and non-discriminatory in its application, I am still of the opinion that the word must receive an unrestrictive interpretation. (Re Ahani, 1998) Considering the fact that in Joses case, the vague definition of terrorism present in Canadian immigration law is endangering his human security and the security of his family, this statement is unsatisfactory and unsettling. The Federal Court should not be content with employing a broad and unrestricted interpretation of the term terrorism.

A broad and unrestricted interpretation of the concept of terrorism, combined with the extremely low standard of proof necessary to accuse noncitizens of terrorism (only reasonable ground to believe), could clearly capture those migrants who, like Jose, pose no real threat to the security of Canada. It draws no clear distinction between armed struggles against repressive regimes and violent actions aimed against civilians (CCR, 2003, 7). Legitimate political dissent is thus often caught in this wide definition of terrorism. To illustrate the insufficiencies of this definition of terrorism, consider this: under the IRPA, Nelson Mandela would be considered a terrorist and would be inadmissible for entry into Canada (Arakelian, 2004). Although he is a Nobel laureate and an honorary Canadian citizen, his membership and involvement in the African National Congress (ANC), which sometimes resorted to violence to resist a repressive regime, would

constitute membership in a terrorist organization (Roach, 2005). By equating violent struggles against repressive military regimes with terrorism, Canadian immigration law blatantly disregards the social and political realities that must be considered when dealing with immigrants who are journeying from countries with diverse histories and circumstances.

Lastly, the expansive definition of terrorism in the IRPA treats all suspected terrorists with the same severity, without consideration for the time that has passed since they allegedly were involved with a terrorist organization, the years they have since spent in Canada, the strength of their social ties, their positive contributions to Canadian society, or the devastating impact their removal would have on Canadian born family members (National Immigration Law Section of the CBA, 2012). It is not acceptable that immigration law, as it currently stands, does not include provisions that consider the importance of these factors when making decisions about who is permitted to remain in Canada.

Definition of Membership in a Terrorist Organization Just as the definition of terrorism is far too broad, the definition of membership in a terrorist organization is also inadequate and poses a danger to many immigrants. It is important to note that under the Anti-Terrorism Act, past, present, or suspected future membership in a terrorist organization is not considered criminal activity (Roach, 2005). Citizens of Canada are not criminalized for their membership in any organization, only their direct involvement in terrorist

actions. In the IRPA, however, a non-citizen can be deemed a threat to national security and thus inadmissible to Canada if they were or are considered a member of a terrorist organization. This draws attention to the disparity in the treatment of citizens vs. non-citizens in Canadian immigration law (Roach, 2005). If Jose were a citizen, his past membership in the FMLN would not be considered a crime and he would not be accused of being a terrorist. In addition to the injustice in the differential treatment of citizens and non-citizens under the law, there are other problems with criminalizing membership in a terrorist organization.

In the IRPA, the grounds on which an individual is considered a member of a terrorist organization are extremely broad, regarding an individual who has participated in violent action with the same severity as a driver or bookkeeper for an organization. This problem of criminalizing membership in an alleged terrorist organization is doubly problematic considering that the reality of many organizations involved in liberation struggles in migrant-sending countries is that their tactics are multi-faceted, involving both violent and nonviolent activities (CCR, 2003). The concept of membership as it exists in the IRPA does not distinguish between membership in organizations for the purpose of participating in their violent activities and the myriad of other cultural, economic and political reasons that an individual might become involved in a certain branch of an organization (Bell, 2006).

As a result, in Canadian immigration law, the interpretation of membership has at times included associates, sympathizers, supporters and fellow travelers (Waldman, as cited in Bell, 2006, 66). This broad interpretation can put individuals in jeopardy of being accused of terrorism simply for belonging to a certain ethnic community or being a supporter of the political liberation of their peoples (The Maytree Foundation, 2001). The Canadian Council for Refugees states that the use of the concept of membership for finding applicants inadmissible runs counter to fundamental Canadian values, namely freedom of association and the requirement that people only be penalized for acts or omissions for which they themselves are responsible (2003, 8). The Maytree Foundation, a leader in immigration research and advocacy in Canada, recommends that either the concept of membership be more succinctly defined, or it should be completely removed as a condition for inadmissibility in the IRPA (2001).

Discretionary and Arbitrary Decision-Making The absence of clear and just definitions of terrorism, terrorist organization, membership and reasonable grounds to believe in the Canadian immigration legislation confers an unreasonable and perhaps undemocratic amount of discretionary power on governmental authorities (Choudhry & Roach, 2003; Forcese, 2006). Discretion is commonly seen as existing in the absence of law and governance, however, in the case of immigration law, discretion can be seen as a form of governance (Pratt, 1999). In the absence of clear legal definitions of these concepts, immigration officials, judges and other government authorities use their discretion to make decisions that may potentially jeopardize the life, liberty and

security of immigrants (Forcese, 2006). Seen together, these decisions work together to shape a new form of governance in which security concerns and the current political climate are transformed into exclusionary, discriminatory immigration law and practice (Pratt, 1999).

Under the IRPA, immigration officials at the Canadian Border Services Agency (CBSA) are given power to punitively or preventatively detain immigrants who they suspect may be terrorists. They are also able to set in motion the process of determining if an immigrant is inadmissible to Canada through preparing a report and submitting it for review to a delegate of the Minister. The decisions of CBSA officers to detain or deport migrants are subject to a significant amount of discretionary power. CBSA officers also refer to the official list of terrorist organizations published by the Government of Canada under the Anti-Terrorism Act to aid in their decision-making. Even the creation of this list, however, has been identified as a highly partisan exercise that is subject to the shifting economic and political interests of the governing party (Crocker et al., 2007). It is disturbing that under the current system, the power to label another person as a terrorist is held by a small number of individuals. These individuals are usually not elected, and therefore are not accountable to the public and are able to make decisions in conditions of relative secrecy with little oversight (Aiken, 2011).

This use of discretionary power in immigration law and practice is closely related to the securitization of migration. It has been noted that in a climate of fear,

discretionary powers are more likely to be used, less likely to be questioned, and most likely manifestations of discrimination (Dauvergne, 2003). Additionally, the extent of this discretionary power also influences the lived experience of immigrants and their perceptions and experiences of their own human security. Due to the fact that CBSA officers and other immigration officials are given the discretionary power under the IRPA to investigate, detain and deport immigrants, they also are given the power to influence immigrants perceptions of how vulnerable they are, how safe they are and how secure their family is (Burman, 2006). Immigrants perceptions and experiences of human security (or lack thereof) have serious implications not only for their future in Canada but also for their safety and mental health while in Canada.

Once an immigrant is labeled as inadmissible into Canada, their options for recourse are limited. One option is to begin the process for a judicial review, and the other lies in the granting of a Ministers exemption on humanitarian and compassionate grounds. Specifically in the case of an application for a Ministers exemption, the fate of an immigrant is left to the Minister of Citizenship and Immigrations discretion. Indeed, many of the other provisions in the IRPA rely solely on the discretionary powers of the Minister (Forcese, 2006). This leaves immigrants vulnerable to the particular predilections of particular ministers at particular historical junctures (Sossin, as cited in Forcese, 2006, 980). This problem is amplified by the fact that judicial reviews, which are important checks on the

discretionary power of adjudicators and judges, are hardly ever undertaken in cases of immigration law (Pratt, 1999).

The lack of judicial oversight in immigration law is unsettling, especially in light of the arbitrariness of decisions made with discretionary power (Ibrahim, 2005). Those who work in the area of refugee and immigrant rights point to the arbitrariness of the decisions made by CBSA officers and the Minister, stating that there have been many seemingly identical cases where one immigrant was granted the opportunity to remain in Canada while the other was order to leave (Burman, 2006). These decisions often have little to do with the actual security threat that an immigrant may pose to Canada, and much to do with the arbitrary enforcement of the law. As in Joses case, decisions made about inadmissibility can sometimes occur decades after the supposed terrorist membership occurred and years after the immigrant has arrived in Canada (National Immigration Law Section of the CBA, 2012). Surely there is a measure of arbitrariness involved when an inadmissibility hearing is put into motion a decade after the immigrant arrived in Canada and fully disclosed their membership in a certain group. There is demonstrable inconsistency in the decision-making processes that, when taken together with the potential influence of systemic discrimination against foreigners and unskilled workers, supports the notion that a transparent oversight and review process is needed (The Maytree Foundation, 2001). In the next section, the problems, contradictions and implications of the issues of securitization and the IRPA that are specific to Joses case will be discussed.

3. Problems, Contradictions and Implications: the Case Of Jose Figueroa The securitization of migration, the broad definitions of terrorism in Section 34.1 of the IRPA, and the corresponding potential for unchecked discretionary power are all issues that are at play in Jose Figueroas case. Firstly, there are numerous issues brought to light by the fact that under the IRPA, Jose is being accused of membership in a terrorist organization. Jose supported the FMLN while in university in El Salvador, his activities going no further than joining a non-violent student union that openly supported the FMLN. At this time, El Salvador was being ruled by a violent, authoritarian regime that used terror to intimidate and restrain citizens (Cardona, 2009). The military regime that was in power supported death squads, who massacred citizens and assassinated prominent individuals who resisted the regime, notably Archbishop Oscar Romero. The University of El Salvador was also a notable site of violent oppression, as the faculty and students were routinely accused of being communists, ordered to vacate the campus with their hands on their head, and beaten if they resisted the military-backed campus police (Cardona, 2009). According to the Commission on the Truth for El Salvador, only 5% of the violations of human rights that took place during the civil war can be attributed to the FMLN, the other 95% were committed by the illegitimate military government (UN Security Council, 1993).

The definition of terrorism present in the IRPA does not account for situations in which the ruling power in a country is involved in terrorism. In the face

of this brutal regime, Jose felt that he must take a stand and oppose this use of violence and terror. Another important consideration is the fact that the FMLN is not listed on Canadas list of terrorist entities. In fact, the FMLN is now the democratically elected governing party of El Salvador with whom the Canadian government has strong diplomatic relations. In this context, how is it that Jose is considered a terrorist for his non-violent membership in this organization nearly 30 years ago? There are clear contradictions in the way that the Canadian government approaches the FMLN, leaving room for speculation that Joses deportation has more to do with a discriminatory, arbitrary interpretation of the law than with protecting the security of Canada.

The other indication of arbitrary and overly discretionary decision making in Joses case is that Jose was fully open about his involvement in the FMLN upon entry into Canada in 1997. He in no way tried to hide this connection, as the violent action taken against FMLN members post-civil war was in fact the reason that he was seeking asylum as a refugee claimant with his wife in Canada. There was no mention of his membership in the FMLN being a problem or grounds for inadmissibility until 2010. 13 years went by before this issue was ever brought up. Did Jose suddenly become more of a danger to the security of Canada 13 years after his entry? Was he considered more of a terrorist as time went on, as he started a family, acquired employment, and developed strong ties to his communities in Canada? Surely this is not the case. The issue at hand here is that he was not considered a threat to the security of Canada upon entry, but 13 years later, an immigration officer decided to

arbitrarily take action against him in order to use the power that is given to them under the IRPA.

Another illustration of the arbitrary nature of the decision-making in Joses case is that in 2004, at the same time that Jose was being questioned by a CBSA officer about his involvement in the FMLN, the officer was also investigating another former FMLN member, Salvador. Shortly after, Salvador was issued a deportation order, however, Jose was not. The issue of membership in the FMLN was not pursued in Joses case for another 6 years. Why? Jose can only speculate about why the officer decided to pursue this lead so many years later. Whether one believes he should be considered a terrorist or not, his case exposes serious shortcomings of the entire Canadian Border Services Agency. If he is considered a terrorist, the CBSA fell short by letting him live in the country for 13 years before taking any action to remove him. If he is not considered a terrorist, he is an innocent man who is getting caught up in the unjust and overly broad definition of terrorism in Canadian immigration legislation. Either way, his case reveals glaring flaws in the ideologies and operations of border control agencies.

Whatever the outcome in his case, it has extremely important implications for the other 150,000 Salvadoreans currently living in Canada, many of whom were former members of the FMLN. If Joses deportation order is not revoked, these individuals will have to live in constant fear that their past ties to this organization will one day be used to eject them from their new home in Canada, with no

consideration for the years that they have spent residing in Canada, for the security and safety of their families (some members who are Canadian born), for the strengths of the ties they have made with their communities, or for the depth of their contributions to the Canadian economy and culture.

The Case of Oscar Vigil One such individual is Oscar Vigil. Oscar Vigil came to Canada as a refugee in 2001, fearing for his safety after receiving numerous death threats because of his connections with the FMLN. His connections to the FMLN did not involve any violent activities. Both Oscar and his wife, Carolina, worked as journalists in El Salvador. Since entering Canada in 2001, Oscar and his wife have started a family in Canada and made valuable contributions to Canadian society. Oscar has contributed his journalistic talent to various Spanish-language publications, as well as serving as Executive Director of the Canadian Hispanic Congress and Co-chair of the Toronto Working Group of the Canadian Centre for International Justice (Vigil Campaign, 2014). Carolina has invested her time in local refugee protection centres that offer services and shelter to refugee women and children. Despite these valuable contributions and demonstrated commitment to human rights, Oscar has been deemed inadmissible to Canada and is facing deportation. This inadmissibility decision contradicts previous CBSA assessments, which concluded that he does not constitute a danger to Canadian society and that he may face cruel and unusual treatment if forced to return to El Salvador and thus should not be deported (Behrens, 2014). He applied for an exemption on the basis of humanitarian and

compassionate grounds, but was recently rejected. Oscars case is extremely similar to Joses, and interestingly enough was also presided over by immigration case officer Karine Roy-Tremblay (Behrens, 2014). Cases like Oscars will continue to emerge if a precedent for just treatment of former FMLN members is not set in Joses case.

Other Issues in the Legal System Beyond the issues that Joses case brings up with the existing immigration and refugee legislation, his case also highlights the barriers that immigrants face in their search for justice in Canadas legal system. While trying to navigate the complex legal system, immigrants and refugees face a number of language, financial, and informational barriers. In addition, they also have to bear to consequences of the lack of legal aid, transparency, and accountability in the justice system. A report on Immigration and Refugee Law Services, commissioned by the Federal Government of Canada, found that the immigration and refugee legal system in B.C. is overly adversarial and often produces negative results for refugee claimants and immigrants (SPARC BC, 2005). Joses case exemplifies this statement. In Joses initial inadmissibility hearings, he was not able to access the full extent of procedural fairness for a variety of reasons. Jose, like many other refugees and immigrants, did not have access to the financial resources or pertinent information in order to access legal aid or acquire knowledgeable legal representation in time for the inadmissibility hearings. Right to informed council is in theory granted to all immigrants, however, this right has no real value in practice if immigrants cannot

afford to pay the costs associated (Barutciski, 2012). Financial barriers continue to obstruct justice in Joses case, as he must find a way to pay for access to legal representation and a variety of other legal fees while living in sanctuary and thus unable to work.

Due to this lack of financial resources and information, Jose was not represented by a lawyer, but by a trusted member of his Church in the initial hearings. Although it was an advantage to have a native English speaker present during the hearings, the member of his church did not possess the legal knowledge to sufficiently argue his case. Without an understanding of administrative law principles, immigrants and refugees who self-represent or who choose to be represented by a friend are statistically less likely to achieve positive verdicts (Barutciski, 2012). The positive correlation between successful claims and legal representation means that a lack of quality state-funded legal aid can be seen as a form of structural discrimination that undermines the potential for immigrants to achieve justice (Barutciski, 2012). Additionally, as a recent immigrant to Canada at the time of the initial court procedures, Jose was not yet fluent in the English language. Language barriers prevented him from making fully informed decisions about the legal process, as well as making it nearly impossible to properly understand the legal jargon included in the preliminary documents he received (Pratt, 1999).

Finally, Joses case exemplifies the documented lack of accountability and efficiency in the legal system that governs immigration issues. His case has been delayed numerous times due to bureaucratic delays, unexplained clerical errors, and other inefficiencies in the judicial process. These unreasonable delays have had extremely negative impacts on his and his familys mental and emotional health, as Jose has been forced to prolong his absence from his family for months at a time while he remains in sanctuary. This experience is corroborated by recent findings that the judicial process in Canada, specifically in B.C., moves too slowly and is subject to unreasonable delays (SPARC BC, 2005). While these delays may simply be the result of errors or inefficiencies, there is also reason to believe that these errors point to a lack of transparency within the system. It is possible that clerical errors or bureaucratic delays are employed to conceal the fact that the court does not yet have sufficient evidence with which to deny Joses claims. The numerous delays may be simply a method of buying time to try to find a sufficient reason to enforce the deportation order before Joses case must be resolved in court.

Conclusion and Recommendations "Power always has to be kept in check; power exercised in secret, especially under the cloak of national security is doubly dangerous." - William Proxmire (as cited in Forcese, 2006) The case of Jose Figueroa illustrates the validity of this statement by former US Senator William Proxmire. Under the justification of national security, the Canadian government is attempting to deport a man who came to this country seeking asylum. Jose faces a reality where he is forcefully divorced from his family

and unable to provide for the needs of his children. An investigation into the whys behind Joses case reveals that the Canadian immigration policy has shifted to reflect the growing securitization of migration, a shift that tends to undermine fundamental human security while privileging the vague concept of state security. This analysis revealed that the current immigration law does not protect us from external enemies, but rather produces these enemies within our borders, specifically by relying on overly broad and unrestricted definitions of terrorism and membership in a terrorist organization.

The use of these broad concepts as the framework for deciding who is permitted to stay in Canada leaves room for an unsettling amount of discretionary power in the decision making process, producing new forms and methods of discrimination and creating a climate of fear among immigrant communities (Crocker et al., 2007). Many innocent people are thus found inadmissible to Canada, and are then forced to navigate a judicial system that is filled with barriers which prevent immigrants from obtaining just outcomes in their cases. As a result, many of Canadas most vulnerable inhabitants, including Jose, are subject to deportation and other decisions regarding their future in Canada that endanger their security.

We must not forget that there can be no security without democracy (Aiken, 2001). The current system that is put in place to protect the security of Canada is fundamentally undemocratic and unjust. What is needed to rectify this grave situation is more thoughtful, nuanced and context-specific standards about who is a

terrorist, for what acts, and in which circumstances (Kaushal & Dauvergne, 2011, 91). There must be greater consistency and accountability of immigration decisionmaking to ensure fairness and to restore public confidence in the legitimacy of the system (Pratt, 1999, 211). Furthermore, there is a need for more effective, equitable and accessible means for migrants to appeal or contest the decisions made regarding their case. Specifically, immigrants and refugees should be provided with state-funded and knowledgeable legal aid, as well as access to information about the inadmissibility process in their own language. Immigrants should also be able to take their case to a judicial review if they so choose. It should no longer be acceptable, in a country that claims to be democratic, accountable, and respectful of human rights, to employ the discourse of national security in order to justify the undemocratic and discriminatory exclusion of immigrants from a safe future in Canada. (Canadian Council for Refugees, 2003). It is for this reason that the We Are Jose campaign began. In the next section, the We Are Jose campaign and its significance will be discussed. Additionally, an overview will be provided detailing how you can support the We Are Jose campaign and get involved in the struggle for immigrant and refugee rights.

Section Three: How

This section will explore how the We Are Jose movement seeks to bring justice for Jose and other immigrants like him. We will discuss what the We Are Jose movement is, why it is important, and how you can become involved.

What is We Are Jose?

Why is the We Are Jose Movement important? It is in this context that Jose Figueroa and his allies are organizing and acting. It is important to understand the significance of the We Are Jose movement, not just for its potential impacts on Jose and his family, but also as a significant political moment (Nyers, 2003). Anti-deportation activism, specifically by and with noncitizen individuals, contests and counters the increasingly restrictive and oppressive immigration measures and creates space for new ways of thinking and acting politically (Nyers, 2003, 1071). This form of activism recognizes the violence with which individuals are excluded from and forced into the category of speechless, agency-less, invisible, and apolitical non-citizens (Nyers, 2003). Traditionally, the ability to engage in political speech and action is one that belongs to citizens. In this system, those who are denied citizenship by the state are also denied the right to be seen and heard as political beings. Thus, the We Are Jose movement is a radical political moment wherein Jose is interrupting the dominant political order not just to be heard, but to demand recognition as an equal speaking being. It aligns with Rancires vision of political activity as a form of activity that shifts a body from the place assigned to it. It makes visible what had no business being seen, and makes heard as discourse where once there was only place for noise; it makes understood

as discourse what was once only heard as noise (Rancire, 1999, 30). In the context of Joses case, the concept of shifting a body from the place assigned to it takes on deeper significance. By engaging in this form of anti-deportation activism, Jose is not only trying to shift from the apolitical identity assigned to him by virtue of being a non-citizen to a political identity, but to contest and challenge the idea that his body has been assigned for deportation to El Salvador. The We Are Jose movement calls into question the naturalness of the dominant virtues and decisions and reveals their arbitrariness (Isin, 2002, 275). This campaign has the potential to advance a form of democratic cosmopolitanism described by Peter Nyers that transforms our understanding of citizenship from a status ascribed (or not) by states to a practice in which migrants and their allies hold states accountable for their definitions and distributions of goods, powers, rights, freedoms, privileges, and justice (Honig, 2001, 104). In the words of Etienne Balibar (2000), movements like We Are Jose have the ability to break through communication barriers, to allow non-citizens to be seen and heard for what they are: not specters of delinquency and invasion, but workers and families, from here and there at the same time. Joses story can make facts, questions and even oppositions linked to the real problems of immigration circulate in public space, instead of the stereotype held by dominant information monopolies (Balibar, 2000, 43). It is by understanding the history of immigration policy in Canada, the discourses surrounding the securitization and its implications, and the significance of the We Are Jose movement as a critical political moment, that we appreciate the

significance of Joses case, ally with him and act to bring justice for Jose and the many other immigrants who are facing and will face similar injustices.

How you can be involved

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