Last year, Citizenship and Immigration Canada (“CIC”) published a notice on its website, which provided valuable guidance regarding the giving of immigration advice.  It states that due to changes in Canada’s immigration law, many stakeholders are now required to be members of a prescribed regulatory body if they wish to provide immigration services to clients, including immigration advice.

According to the notice, the stakeholders affected include: (1) travel agents, (2) employment agents and recruiters, (3) human resources (“HR”) professionals, (4) educational agents, (5) adoption agencies, and (6) live-in caregivers’ agents.  The notice further states that these stakeholders should not perform any of the following tasks:

1. They should not explain and/or advise on someone’s immigration options.
2. They should not guide a client on how to select the best immigration stream.
3. They should not complete and/or submit immigration forms on a client’s behalf.
4. They should not communicate with CIC or the Canada Border Services Agency on a client’s behalf (except for the direct translation of a client’s written or spoken submissions).
5. They should not represent a client in an immigration application or proceeding.
6. They should not advertise that they can provide immigration advice for consideration.
7. HR personnel cannot complete applications forms, such as work permits and visa applications, on behalf of workers recruited.

CIC is clearly warning stakeholders not to engage in the unauthorized practice of law.  It is also of the opinion that merely advising someone on their immigration options can be considered unauthorized practice.  Despite this warning, it remains to be seen whether the above stakeholders will refrain from performing these tasks in the future.

On February 11, 2014, Finance Canada released its 54-page “Jobs Report” alongside the Federal Budget. In that report, the Canadian Government claimed that Canada’s job vacancy rate had been “increasing steadily since 2009.”  However, this claim was challenged by economists, who noted that Statistics Canada’s own figures proved it was declining.

As reported by the media, the problem related to the Canadian Government’s use of data provided by a company known as Wanted Analytics, which uses software to send Web spiders across all known online job sites in order to create a database of available jobs.  The Conference Board of Canada, which also uses Wanted Analytics, recently concluded that job postings from Kijiji were overly volatile and removed them as a source of job data for its own Help Wanted Index.

Officials with the Parliamentary Budget Office have also stated that the Kijiji website is so unreliable as a job site that it can single-handedly explain Finance Canada’s claims.  With the removal of Kijiji from the search, the steep rise in the job vacancy rate essentially disappears.

Some employers still use Kijiji and Craigslist in order to comply with the advertising requirement, which applies to Labour Market Opinion (“LMO”) applications.  However, the recent media attention surrounding the Jobs Report strongly suggests that such websites should not be considered reliable sources for recruitment.

During the past few months, immigration practitioners have reported that some LMO applications, which relied on Kijiji or Craigslist for recruitment, have been denied by Employment and Social Development Canada (“ESDC”).  However, this rejection of Kijiji and Craigslist as a recruitment source is not being applied consistently and no formal guidance has been published by ESDC yet.

Even in the absence of formal guidance, employers that wish to advertise jobs in connection with the filing of an LMO application should avoid the use of free websites such Kijiji or Craigslist.  They should instead consider established employment websites such as canadastop100.com, vault.com, workopolis.com, or monster.ca; all of these websites are specifically listed on the ESDC website as examples of acceptable sources for recruitment.

On February 11, 2014, the Government of Canada announced its intention to terminate the Federal Immigrant Investor Program (“IIP”) and Federal Entrepreneur Program (“EP”) and eliminate the large backlog of applications.  These immigration-related announcements were contained in the Canadian Government’s 2014 Budget (the “Economic Action Plan 2014”).

The Economic Action Plan 2014 proposes to terminate IIP and EP applications filed on or before February 11, 2014, and to return the filing fees paid to those applicants.  However, before this plan can be implemented, the Budget Implementation Act must still be passed by Parliament and receive Royal Assent.

According to Operational Bulletin 566 (“OB 566”), published by Citizenship and Immigration Canada (“CIC”) on February 12, 2014, the processing of IIP and EP applications will continue according to routine office procedures until further notice.  Of course, Canada has not accepted any new IIP applications since July 1, 2012, and has not accepted any new EP applications since July 1, 2011.  OB 566 refers only to cases currently in the backlog.

There has been no announcement regarding which cases currently in the backlog will be processed to completion.  Based on the process used by CIC when it eliminated the backlog of Federal Skilled Worker cases, it is likely that the Budget Implementation Act will terminate all applications that have not reached a specific stage of approval by a specified cut-off date.  Unfortunately, there is no information available regarding what stage of completion and what cut-off date will be used.

According to the Canadian Government, the global economy has changed significantly since the IIP was created three decades ago.  Investment capital flows increasingly freely across borders, and interest rates are low.  Other peer countries have already adapted by increasing the investment and commitment required under their programs.

The Canadian Government has also stated that the EP was designed in the 1970s when Canada’s economic priorities were different from what they are today.  At that time, the focus was on protecting jobs in Canada.  However, a more globalized economy requires a shift towards innovation, productivity and creating better jobs and stronger businesses that can compete on a global scale.

In place of the these programs, the Canadian Government will introduce a new Immigrant Investor Venture Capital Fund pilot program, which will require immigrants to make a real and significant investment in the Canadian economy.  The Government will also undertake consultations on a potential Business Skills pilot program.

These new pilot programs will be implemented by way of Ministerial Instructions, pursuant to Section 14.1 of the Immigration and Refugee Protection Act (“IRPA”), in the same manner as the Start-Up Visa Program.  Under Section 14.1, no more than 2,750 applications may be processed each year under a pilot program.  In addition, a pilot program may only be implemented for a maximum period of five years, after which the Canadian Government must amend IRPA if it wishes to establish a permanent program.

Overview

On February 6, 2014, Citizenship and Immigration Minister (the “Minister”) Chris Alexander unveiled Bill C-24, the Strengthening Canadian Citizenship Act, which will be the first significant amendment to the Canadian Citizenship Act [1] since 1977.  Among other things, Bill C-24 makes the following amendments to the Citizenship Act:

1. It clarifies the meaning of being resident in Canada for naturalization purposes;
2. It changes the period during which a permanent resident must reside in Canada before they may apply for citizenship;
3. It expedites access to citizenship for persons who are serving in, or have served in, the Canadian Armed Forces;
4. It requires an applicant for citizenship to demonstrate knowledge of Canada, knowledge of the responsibilities and privileges of citizenship, and knowledge of one of Canada’s official languages;
5. It specifies the minimum age at which an applicant for citizenship must demonstrate the above knowledge;
6. It requires that an applicant meet any applicable requirement under the Income Tax Act [2] to file an income tax return;
7. It confers citizenship on certain individuals and their descendants who may not have acquired citizenship under prior legislation;
8. It extends an exception to the first-generation limit to citizenship by descent to children born to or adopted abroad by parents who were themselves born to or adopted abroad by Crown servants; and
9. It requires, for a grant of citizenship to an adopted person, that the adoption not have circumvented international adoption law.

Amendments to the Citizenship Act‘s security and fraud provisions also include the following changes:

1. It expands the prohibition against granting citizenship to include persons who are charged outside Canada for an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament or who are serving a sentence outside Canada for such an offence;
2. It expands the prohibition against granting citizenship to include persons who engaged in certain actions contrary to the national interest of Canada while they were permanent residents;
3. It aligns the grounds related to security and organized criminality on which a person may be denied citizenship with those grounds that currently exist in the Immigration and Refugee Protection Act [3] and extends the period during which a person is barred from acquiring citizenship on that basis;
4. It expands the prohibition against granting citizenship to include persons who misrepresent material facts in the course of their application and prohibits new applications by those persons for a specified period;
5. It increases the period during which a person is barred from applying for citizenship after having been convicted of certain offences;
6. It increases the maximum penalties for offences related to citizenship, including fraud and trafficking in documents of citizenship;
7. It provides for the regulation of citizenship consultants;
8. It establishes a hybrid model for revoking a person’s citizenship in which the Minister will decide the majority of cases and the Federal Court will decide the cases related to inadmissibility based on security grounds, on grounds of violating human or international rights or on grounds of organized criminality;
9. It increases the period during which a person is barred from applying for citizenship after their citizenship has been revoked;
10. It provides for the revocation of citizenship of dual citizens who, while they were Canadian citizens, engaged in certain actions contrary to the national interest of Canada, and permanently bars these individuals from reacquiring citizenship; and
11. It authorizes regulations to be made respecting the disclosure of information.

Amendments to the provisions governing the processing of applications and the review of decisions include the following:

1. It requires that an application must be complete to be accepted for processing;
2. It expands the grounds and period for the suspension of applications and provides for the circumstances in which applications may be treated as abandoned;
3. It limits the role of citizenship judges in the decision-making process, subject to the Minister periodically exercising his or her power to continue the period of application of that limitation;
4. It gives the Minister the power to make regulations concerning the making and processing of applications;
5. It provides for the judicial review of any matter under the Citizenship Act and permits, in certain circumstances, further appeals to the Federal Court of Appeal; and
6. It transfers discretionary power to grant citizenship in special cases to the Minister.

Key Changes

Bills C-24 proposes to streamline the citizenship application process by reducing the decision-making process from three steps to one and will eliminate the role of citizenship judges in such applications.  The Government of Canada states that this change should bring the average processing time for citizenship applications down to under a year by 2015–2016.  It also states that the current backlog will be reduced by more than 80% by 2015-2016.

The Government of Canada states that current citizenship application fees only cover 20% of the cost of processing a citizenship application.  Bill C-24 will impose a new $300.00 CAD application fee for citizenship applicants, which should cover the entire cost of processing a citizenship application.

Bill C-24 will increase the period of required residence for citizenship eligibility.  The current rules allow a permanent resident to seek Canadian citizenship after being resident in Canada for at least three years during the four years preceding the filing of the application.  The proposed rules will instead require four years of residence in Canada during the six years preceding the filing of the application.

Bill C-24 will specifically require applicants to have been physically present in Canada for at least 183 days out of each of their four years of residence in Canada.  This addresses the conflicting federal court decisions that have attempted to define the meaning of “resident in Canada” for the purposes of citizenship eligibility.

Bill C-24 will require applicants to have met any applicable requirement under the Income Tax Act to file an income tax return for the four taxation years during which they claim to have been resident in Canada.  This requirement does not exist under the current Citizenship Act.

Bill C24 will broaden the range of applicants who will be required to satisfy the official language and knowledge tests.  Under the current Citizenship Act, applicants ages 18 to 54 must speak English or French and pass a Canadian knowledge test.  The proposed amendments will increase the maximum age to age 64.

One of the most controversial changes contained in Bill C-24 is the ability of the Canadian Government to revoke the Canadian citizenship of dual citizens (both Canadian-born and naturalized citizens) if they are convicted of terrorism, treason or spying abroad.  It will also allow the Government of Canada to revoke the Canadian citizenship of dual citizens who are part of an “organized armed group engaged in armed conflict in Canada,” or block citizenship applications from such people.  Although the proposed law prohibits the Canadian Government from revoking the Canadian citizenship of persons who would otherwise become stateless, critics have pointed out that many Canadians may unknowingly possess citizenship in another country through a parent, even though they have no connection to that country and have never previously claimed that country’s citizenship.

Conclusion

Although Bill C-24 contains several welcome changes to the Citizenship Act, it also contains several controversial provisions that are certain to prompt a heated debate in Canada.

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1. R.S.C., 1985, c. C-29.
2. R.S.C., 1985, c. 1 (5th Supp.).
3. S.C. 2001, c. 27.

As of February 6, 2014, visitors to Canada will automatically be considered for multiple-entry temporary resident visas (“TRVs”).  A multiple-entry TRV will allow a visitor to enter Canada on multiple occasions, during the validity period of the visa, without having to reapply each time.

The fee for a TRV will also be reduced from $150.00 CAD to $100.00 CAD, for the processing of either a single- or multiple-entry visa.  Citizenship and Immigration Canada has also increased other temporary resident application fees as of February 6, 2014.  These changes include the following:

• There will be a $25.00 CAD  increase for study permits and renewals;
• There will be a $5.00 CAD increase for work permits and renewals;
• There will be a $25.00 CAD  increase for extensions to remain in Canada as a visitor;
• The maximum fee for a family to apply for TRVs will increase by $100.00 CAD to $500.00 CAD; and
• The maximum work permit fee for a group of performing artists and their staff will increase by $15.00 CAD to $465.00 CAD.

UPDATE: Since this article was first published, the Toronto Police Service has issued a press release, which appears to confirm that Justin Bieber was charged with a single count of simple assault.  As a result, even a conviction will not result in his inadmissibility to the United States.  Of course, the media has also just reported that the lab results from Mr. Bieber’s sobriety tests have confirmed marijuana and Xanax in his system at the time of his arrest in Florida.  This is more likely to result in his inadmissibility/deportability than his current charges in Canada.

Overview

The media is now reporting that Justin Bieber returned to Toronto and surrendered himself to the Metropolitan Toronto Police (52 Division) at about 7:30pm tonight (Toronto time).  He is expected to be charged with assault in connection with an incident that occurred in Toronto between the late evening on December 29, 2013 and the early morning on December 30, 2013.

At the time, the media reported that a member of Justin Bieber’s entourage had apparently assaulted a limousine driver who was driving the entertainer and several others.  It was unclear whether Justin Bieber was personally involved in the attack but the Metropolitan Toronto Police believed that he was in the limousine at the time of the attack.

In light of this imminent assault charge, it would be appropriate to revisit the issue of Mr. Bieber’s continuing ability to enter the United States if he is actually convicted of assault in Canada.

Assault in Canada

Unlike in the U.S, where criminal law is under the jurisdiction of each state, criminal law in Canada is under federal jurisdiction.  Most criminal offenses appear in the Canadian Criminal Code (“CCC”). [1] The offense of assault appears in CCC 265(1), which states that a person commits an assault when:

1. Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

The maximum penalty that will apply depends on whether the perpetrator uses a weapon, causes bodily harm, or if it is considered an aggravated assault.  However, details of the incident itself are limited so there is no way to determine whether the Mr. Bieber will be charged with simple assault or something more serious.

Applicable Ground of Inadmissibility

As mentioned in my previous blog post, while the grounds of deportability contained in the Immigration and Nationality Act (“INA”) determine when a person may be removed from the United States, the grounds of inadmissibility determine when a person will be prevented from entering the United States.  As Mr. Bieber has now returned to Canada, the grounds of inadmissibility contained in the INA will apply if he seeks to re-enter the United States.

According to INA 212(a)(2)(A)(i)(I), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (“CIMT”) or an attempt or conspiracy to commit such a crime, is inadmissible.  For Mr. Bieber’s assault conviction to result in inadmissibility, it would need to be considered a CIMT.

As I previously mentioned, the definition of “moral turpitude” is extremely vague; it is often very difficult to determine whether a particular offense is a CIMT.  However, “moral turpitude” has been defined by the Board of Immigration Appeals (“BIA”) as an act that that is per se morally reprehensible and intrinsically wrong, so it is the nature of the act itself and not the statutory prohibition of it which makes it a CIMT.[1]

Simple Assault

In the absence of further details, we can probably assume that Justin Bieber will be charged with simple assault.  Assuming that Mr. Beiber is convicted of simple assault, this would fall under CCC 266, which states that every one who commits an assault is guilty of:

1. An indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. An offence punishable on summary conviction.

This is considered a hybrid offense, which means that the Crown (i.e. prosecutor) can elect to treat the case as an indictable offense (i.e. felony) or as a summary conviction (i.e. misdemeanor).

The law is fairly well-established in the United States that simple assault is not considered a CIMT.[2]  Therefore, if he is convicted of simple assault, this should not render Mr. Bieber inadmissible to the United States.

Aggravated Assault, Assault with a Weapon, and Assault Causing Bodily Harm

These more serious forms of assault are a bit more complicated to assess, since the case law is not entirely consistent.  However, in Matter of Perez-Contreras[3], the BIA attempted to summarize these prior decisions and concluded that, for assault to be considered a CIMT, it would need to require intentional or reckless conduct.

Assault with a Weapon and Assault Causing Bodily Harm

If Justin Bieber is convicted of assault with a weapon or assault causing bodily harm, this would fall under CCC 267, which states that every one who, in committing an assault:

1. Carries, uses or threatens to use a weapon or an imitation thereof, or
2. Causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Although CCC 267 provides for enhanced penalties where the assault is committed with a weapon or ultimately causes bodily harm, it is not an element of the offense that the perpetrator act recklessly or intentionally with the objective of causing bodily harm.  Therefore, even assault with a weapon or assault causing bodily harm may not be considered CIMTs.

Aggravated Assault

If Mr. Bieber is convicted of the more serious offense of aggravated assault, it would fall under CCC 268, which states that every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.  It also states that aggravated assault is an indictable offence with a maximum term of imprisonment not exceeding fourteen years.

This more serious form of assault still does not specifically state that it requires reckless or intentional conduct as an element of the offense.  The 9th Circuit specifically considered CCC 268 for the purposes of inadmissibility in Uppal v. Holder.[4]  In that decision, the court concluded that a conviction for aggravated assault under CCC 268 did not require that the perpetrator specifically intend to inflict serious physical injury, or any injury at all.  Under CCC 268, a perpetrator need not even recklessly disregard the risk of bodily harm or endangerment resulting from the assault. Instead, CCC 268 requires only that a reasonable person would know that the assault carries a risk of bodily injury or endangerment, which is a negligence standard.

Based on the above, it would appear that even aggravated assault under CCC 268 would likely not be considered a CIMT.  Therefore, if Justin Bieber is convicted of aggravated assault, it probably will not render him inadmissible either.

Conclusion

I can finally give Justin Bieber some good news.  Although his other conduct might eventually render him inadmissible to the United States, he does not need to worry too much about his assault charge.  It probably will not affect his ability to re-enter the United States.

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[1] R.S.C., 1985, c. C-46.

[2] Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465(BIA 2011).

[3] 20 I. & N. Dec. 615 (BIA 1992).

[4] 605 F.3d 712 (9th Cir. 2010).

UPDATE: Since this article was first published, the media has reported that the lab test results from Justin Bieber’s sobriety tests have confirmed the presence of marijuana and Xanax in his system at the time of his arrest in Florida.  As a result, it appears likely that controlled substances charges will follow.  If he is convicted of such an offense, this will render him deportable (and inadmissible, if he is already outside the United States).  Even pending charges could make things difficult for Mr. Bieber when he tries to re-enter, since United States Customs and Border Protection could question him about his drug use when he applies for admission to the United States.  If he admits to drug use at that time, he can be barred.

Introduction

Canadian entertainer Justin Bieber appears to be receiving a lot of unwanted attention in the media lately and there has been an ongoing discussion regarding whether the United States Government should deport him.  The most recent development has been an online petition at www.whitehouse.gov, calling for Mr. Bieber’s removal from the United States.

As of January 29, 2014, more than 100,000 people have signed the online petition.  As this number has now reached 100,000 signatures, the petition will be reviewed by officials in the Obama Administration and an official response will be issued.

Although the existence (and success) of this online petition is certainly amusing, even when an official response is published, it is unlikely to satisfy the petition’s supporters.  This is because the White House does not have any real authority to deport an individual that it deems undesirable.

Rather than debating whether Justin Bieber should be deported, perhaps it is more appropriate to consider whether he can be deported.  I will endeavor to answer this question below.

Justin Bieber’s Legal Status in the United States

As have been reported by the media, Justin Bieber is currently a non-immigrant alien.  In other words, he is a foreign national (i.e. alien) who does not possess lawful permanent resident status (i.e. a green card) in the United States.

Mr. Bieber appears to hold O-1 status as an alien of extraordinary ability.  An O-1 alien is defined at §101(a)(15)(O)(i) of the Immigration and Nationality Act (“INA”) as an alien who:

has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability.

Of course, all aliens are subject to removal from the United States if they commit certain acts prohibited by the INA, including the commission of specific criminal offenses.

The Alleged Offences

Vandalism (California)

On January 9, 2014, the Police were summoned to Justin Bieber‘s home because a neighbor alleged that the entertainer had thrown as many as twenty eggs at both him and his house, causing $20,000 of damage.  Based on media reports, the Los Angeles County District Attorney’s Office is still considering whether to charge Mr. Bieber with felony vandalism. Vandalism in the State of California is covered by Section 594 of the California Penal Code (“PC”).

The media also reported that, when the Police Searched Mr. Bieber’s residence, they found controlled substances in the home.  However, the drugs were alleged to belong to rapper Lil Za, who was arrested instead of Mr. Bieber.

Driving under the Influence (“DUI”), Driving with an Invalid Licence, and Resisting Arrest without Violence (Florida)

On January 23, 2014, Justin Bieber was charged with DUI, resisting arrest without violence, and driving without a valid license after Miami Beach Police stopped him for street racing.  According to Miami Beach Police, Mr. Bieber admitted to having “consumed some alcohol, and that he had been smoking marijuana and consumed some prescription medication.”  A copy of the arrest affidavit appears online here.

Based on media reports, Mr. Bieber has been charged with DUI, driving with an invalid licence, and resisting arrest without violence.  DUI in the State of Florida is covered by Section 316.193 of the Florida Statutes (“FS”) and resisting an officer without violence is covered by FS 843.02.  Driving with a license that is suspended, revoked, canceled, or disqualified is covered by FS 332.34.

Of course, it is not known whether Mr. Bieber was charged with driving with an expired license (which is not a criminal offense) or driving while his license is suspended, revoked, canceled, or disqualified (which is a criminal offense).  However, at least one media report has stated that he was charged with driving with an expired license.

Mr. Beiber also allegedly made an admission to Miami Beach Police that he had smoked marijuana and consumed prescription medication.  However, he was not been charged with any controlled substance offense as a result of this admission.

Possible Removal for a Crime Involving Moral Turpitude (“CIMT”)

Overview

According to INA §237(a)(2)(A)(i), any alien who: (I) is convicted of a CIMT committed within five years after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed is deportable.  In addition, according to INA §237(a)(2)(A)(ii), any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined and regardless of whether the convictions were in a single trial, is deportable.

The definition of “moral turpitude” is extremely vague; it is often very difficult to determine whether a particular offense is a CIMT.  However, “moral turpitude” has been defined by the Board of Immigration Appeals (“BIA”) as an act that that is per se morally reprehensible and intrinsically wrong, so it is the nature of the act itself and not the statutory prohibition of it which makes it a CIMT.[1] For example, an inherently immoral act such as theft, fraud, sexual assault, or murder would clearly be a CIMT but a simple regulatory offense such as DUI typically would not be considered a CIMT.

Vandalism as a CIMT

Although it is likely that vandalism under PC 594 would not be considered a CIMT, some uncertainty still exists.  In Rodriguez-Herrera v. INS[2], the 9th Circuit found that the crime of malicious mischief in the State of Washington was not a CIMT because one could be convicted for destroying “as little as $250.00 of another’s property with merely an evil wish to annoy.”  However, it could theoretically be argued that vandalism causing $20,000 in damage could have been committed with more than a mere wish to annoy resulting in a finding of moral turpitude.

Since the alleged damage was more than $400.00, it is considered a “wobbler,” which means that the District Attorney could either charge Mr. Beiber with a misdemeanor or a felony (this is similar to a hybrid offense under the Canadian Criminal Code[3]).  Given the amount of the alleged damage, we will assume for the purposes of this discussion that the District Attorney would elect to charge Mr. Beiber with a felony, which may be punished by a sentence of between one and three years.

In summary, although a charge of felony vandalism could be punishable by at least one year of imprisonment, the balance of probabilities suggests that it would not be found to be a CIMT.  Therefore, even a conviction for felony vandalism would probably not result in Mr. Beiber’s removal from the United States under INA §237(a)(2)(A)(i), although one cannot be absolutely certain due to the vague definition of “moral turpitude.”

DUI as a CIMT

In order for a DUI offense to be considered a ground of deportability, it also must be considered a CIMT.  However, the law is well-settled that a simple DUI is typically not considered a CIMT.[4] Therefore, even a conviction for DUI under FS 316.193 should not result in Mr. Beiber’s removal from the United States under INA 237(a)(2)(A)(i).

Driving with an Invalid License as a CIMT

Driving with an expired license almost certainly not considered a CIMT.  Even driving with a license that is suspended, revoked, canceled, or disqualified under FS 332.34 is probably not considered a CIMT.  However, there is at least a small possibility that could be considered an aggravating factor that elevates Mr. Bieber’s DUI offense to a CIMT.

In Matter of Lopez-Meza, the BIA considered a conviction for aggravated DUI in the State of Arizona.  Under the Arizona statute, a person could be found guilty of aggravated DUI by committing a DUI offense while knowingly driving on a suspended, canceled, or revoked license or by committing a DUI offense while already on a restricted license owing to a prior DUI.  Although the BIA acknowledged that simple DUI was not a CIMT, it found that the serious misconduct described in the aggravated DUI offense involved “a baseness so contrary to accepted moral standards that it rose to the level of a CIMT.”

Of course, the Florida statute does not appear to consider driving with a suspended, canceled, or revoked license to be an aggravating factor in DUI cases.  So it is very unlikely that committing a DUI with a driver’s license that is suspended, canceled, or revoked will elevate the offense to a CIMT in the State of Florida.

Resisting an Officer without Violence as a CIMT

Resisting arrest is probably not considered a CIMT; resisting arrest without violence is almost certainly not considered a CIMT.  Therefore, it is unlikely that a conviction under FS 843.02 would result in Justin Bieber’s removal from the United States under INA 237(a)(2)(A)(i).

Removal for an Aggravated Felony

Overview

According to INA §237(a)(2)(A)(iii), any alien who is convicted of an aggravated felony at any time after admission is deportable.  The term “aggravated felony” is defined at INA §101(a)(43) and includes many serious offenses such as murder, rape, and sexual abuse of a minor.  However, the definition also states that “crimes of violence” (“COVs”), as defined in 18 U.S.C. §16, are also considered aggravated felonies if the term of imprisonment actually imposed (regardless of any suspension) is at least one year .  Section 16 defines a COV as “any offense that has an element the use or attempted use or threatened use of physical force against the person or property of another” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property against another may be used in the course of committing the offense.”  The state’s designation of the offense as a misdemeanor does not preclude it from being considered an aggravated felony, since federal law controls.

Vandalism as an Aggravated Felony

It is likely that vandalism would not be considered a COV, especially if it consisted of simply throwing eggs at a neighbor’s house.  To ensure greater certainty, it would be in Mr. Bieber’s interests to seek a sentence of less than one year (suspended or otherwise), in the event that he is charged and convicted.

DUI as an Aggravated Felony

DUI has been found not to be a COV, even if it causes serious bodily injury.[5] In addition, the maximum penalty for a first offense is six months of imprisonment; even in the case of a second offense, the maximum penalty is nine months of imprisonment.  Clearly, it is not possible to receive a sentence of one year.  Therefore, a conviction for DUI under FS 316.193 should not be considered an aggravated felony.

Resisting Arrest without Violence as an Aggravated Felony

Although the 9th Circuit has found resisting arrest to be a COV under Arizona law,[6] resisting arrest without violence in the State of Florida is very different, since it only includes conduct where no violence was involved.  Resisting arrest without violence is likely analogous to evading a police officer, which has been found not to be a COV.[7] However, it is a first degree misdemeanor, punishable by up to one year of imprisonment.  To ensure greater certainty, it would be in Mr. Bieber’s interests to seek a sentence of less than one year (suspended or otherwise), in the event that he is convicted.

Removal for an Controlled Substance Possession

According to INA §237(a)(2)(B)(i), any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act[8]), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana, is deportable.  Although at the present time, Mr. Bieber has not been charged with any controlled substance offense, if he is charged and convicted of possession of a controlled substance (either for unlawful possession of prescription drugs or for possession of more than thirty grams of marijuana), he would be removable from the United States.

At the present time, the Miami Beach Police only have his admission that he had smoked marijuana earlier; there is no evidence that any controlled substances were in his possession at the time.  In addition, although controlled substances were found in his California residence, they have been attributed to Lil Za, so it is not likely that he will be charged because of that incident.  As a result, it is unlikely that Justin Bieber will be convicted of a controlled substance offense unless further evidence becomes available.

Admission to Possession of a Controlled Substance

As mentioned above, INA §237(a)(2)(B)(i) applies only to controlled substance convictions.  However, he could still be denied admission to the United States if he leaves and attempts to re-enter the United States.  While the grounds of deportability contained in the INA determine when a person may be removed from the United States, the grounds of inadmissibility determine when a person will be prevented from entering the United States.  These grounds are similar but not identical to each other.

According to INA §212(a)(2)(A)(i)(II), any alien who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.  Clearly, a mere admission can result in inadmissibility, although there are specific rules governing admissions.

For example, an adequate definition of the offense must typically be provided to the alien who must then admit all of the essential elements.[9] In addition, the admission must typically be made before an immigration officer, although an admission made to a police officer could be sufficient to result in inadmissibility under INA §212(a)(2)(A)(i)(II).[10]

As I previously mentioned when commenting on the potential inadmissibility of Toronto Mayor Rob Ford, since Justin Bieber’s admission of marijuana use to the Miami Beach Police has now become public knowledge, he could have problems seeking readmission to the United States in the future.  Even if his admission to the Miami Beach Police does not satisfy legal requirements for it to be considered a ground of inadmissibility, there is nothing preventing from United States Customs and Border Protection (“USCBP”) from questioning him at length during his next application for entry.  If he then admits to USCBP that he was previously in possession of a controlled substance, he could be denied admission pursuant to INA §212(a)(2)(A)(i)(II), in the same manner as someone who had actually been convicted of such an offense.  At that point, he would not be allowed back into the United States until he obtained a temporary waiver of inadmissibility.

Conclusion

At the present time, it appears unlikely that Justin Bieber could be deported for any of the offenses for which he has been charged.  However, there is a very real possibility that Mr. Bieber could be questioned by USCBP the next time he tries to re-enter the United States.  If he admits to controlled substance possession at that time, he may very well find himself barred from the United States.

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[1] Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994).

[2] 52 F.3d 238 (9th Cir. 1995).

[3] R.S.C., 1985, c. C-46).

[4] Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).

[5] Leocal v. Ashcroft, 543 U.S. 1 (2004).

[6] Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007).

[7] Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008).

[8] 21 U.S.C. 802.

[9] See Matter of J, 2 I. & N. Dec. 285 (BIA 1945), Matter of K, 7 I. & N. Dec. 594 (BIA 1957), and Matter of Amar Kumar Pani, 19 Immig. Rptr. B1-142 (BIA 1998).

[10] Matter of K-, supra.

Blaney McMurtry partner Henry J. Chang was recently chosen by Who’s Who Legal as one of the top 15 most highly regarded corporate immigration lawyers in the World for 2013, in its annual worldwide research of law firms. Who’s Who Legal is the Official Research Partner of the International Bar Association and Strategic Research Partner of the ABA Section of International Law.

In addition to this recognition, Mr. Chang is also listed as a leading practitioner in the field of immigration law the Lexpert Canadian Legal Directory, recognized as an expert in immigration law by Best Lawyers, and holds an AV (Preeminent) peer rating from Martindale Hubbell in the field of immigration law.

Introduction

As part of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan (the “Action Plan”), Canada and the United States agreed to establish a common approach to screening visa-exempt foreign nationals in order to identify threats before they arrive in the North American perimeter.  On December 7, 2013, Citizenship and Immigration Canada (“CIC”) published a Notice of Intent in the Canada Gazette, indicating its intention to introduce an Electronic Travel Authorization (“eTA”) Program in Canada.  The eTA program will be similar to the Electronic System for Travel Authorization (“ESTA”) Program, which currently applies to foreign nationals who enter the United States under the Visa Waiver Program.

Overview of the eTA Program

Once implemented, the proposed amendments to the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) would require most visa-exempt foreign nationals to apply for and obtain an eTA registration before entering Canada by air (but not by land).  By screening visa-exempt foreign nationals before they arrive in Canada (by air), the Government of Canada hopes to prevent foreign nationals who are inadmissible or who do not meet the requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) from travelling to Canada.

The Notice of Intent states that, because Canadian citizens are currently exempt from the ESTA requirement in the United States, United States citizens travelling to Canada will be exempt from the eTA requirement.   It also states that the following foreign nationals, who are described in Subsections 190(2) and (2.1) of the Regulations, will be exempted from the eTA requirement:

• Holders of passports that contain a diplomatic acceptance, a consular acceptance or an official acceptance issued by the Chief of Protocol for the Department of Foreign Affairs and International Trade on behalf of the Government of Canada and who are a properly accredited diplomat, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies, or of any international organization of which Canada is a member;
• Holders of passports or travel documents issued by the Holy See;
• Holders of national Israeli passports;
• Holders of passports issued by the Hong Kong Special Administrative Region of the People’s Republic of China;
• Holders of passports issued by the United Kingdom to a British National (Overseas), as a person born, naturalized or registered in Hong Kong;
• Holders of passports issued by the United Kingdom to a British Subject which contains the observation that the holder has the right of abode in the United Kingdom;
• Holders of ordinary passports issued by the Ministry of Foreign Affairs in Taiwan that includes the personal identification number of the individual; and
• Citizens of Lithuania or Poland if they hold machine readable passports that contain a contactless integrated circuit chip and that is issued by Lithuania or Poland.

According to the Notice of Intent, the following travellers could be subject to the eTA requirement:

• Citizens of current visa-exempt countries listed in Subsection 190(1) of the Regulations, other than citizens of the United States, and foreign nationals travelling with passports listed under Subsections 190(2) and (2.1); and
• Foreign nationals currently listed in Subsection 190(3) of the Regulations, which include (among others):
  • Air crew members;
  • Foreign nationals transiting through Canada under the Transit Without Visa Program or China Transit Program; and
  • Foreign nationals re-entering Canada after a visit solely to the United States or Saint-Pierre and Miquelon, provided that the requirements of Paragraph 190(3)(f) are met.

The proposed regulatory amendments would specify that foreign nationals who require an eTA must apply online through the CIC Web site by entering mandatory biographic, passport and background information similar to the information that is currently requested by immigration officers at ports of entry or in applications for a temporary resident visa.  These background questions are designed to disclose potential grounds of inadmissibility under the Act.

In order to determine that the eTA applicant is not inadmissible and meets the requirements of the Act, an electronic system would perform an examination that includes a risk assessment and a verification of the information provided in the application against immigration and enforcement databases.  CIC expects that the majority of applications will be approved by the electronic system within minutes of applying.

Any application that is not automatically approved by the electronic system will be referred to an immigration officer for further examination.  If an examination by an immigration officer is required, they would have the ability to either approve or deny an eTA application after making a determination regarding the foreign national’s admissibility or compliance with the Act.

Once approved, an eTA would be valid for a period of up to five years.  However, officers would have the ability to suspend or cancel the eTA, if the foreign national becomes inadmissible to Canada at a later time.

The proposed regulatory amendments would also impose a small cost recovery fee for eTA applications.

Unanswered Questions

The Notice of Intent did not provide a detailed explanation of how CIC would actually implement the eTA program.  As a result, several questions remain unanswered, including the following:

• It is unclear whether eTA applicants would be given an opportunity to explain their situation if the electronic system cannot automatically approve their request and it is referred to an immigration officer.  Would the immigration officer contact the applicant and offer him or her an opportunity to establish admissibility before rendering a final decision?
• If an eTA application is denied, would it constitute a refusal of admission or a refusal of a visa?  If so, would an applicant be required to disclose this denial during a subsequent application or inspection?  Would the applicant be able reapply for an eTA at a later date?
• What rights of appeal would be available to an applicant who has been denied an eTA?
• If a visa-exempt foreign national is denied an eTA but is still potentially eligible to enter Canada, perhaps with a temporary resident permit (“TRP”), would he or she be permitted or required to apply at a Canadian embassy or consulate?  If so, would this not result in significantly higher backlogs at consular posts?
• Would information collected in connection with the eTA application be shared with the United States?  If so, what types of information would be shared?

Hopefully, these outstanding questions will be answered once the proposed regulatory amendments are published.

Introduction

On November 9, 2013, Citizenship and Immigration Minister Chris Alexander announced significant changes to the Canadian Experience Class (“CEC”).  Citizenship and Immigration Canada (“CIC”) will now impose a total annual cap on the number of new CEC applications that it accepts and introduce limits on the number of applications that may be accepted in certain occupations.  In addition, CIC will change the timing of when language ability is assessed.

Total Annual Cap

For the period commencing on November 9, 2013, and ending on October 31, 2014, CIC will accept a maximum of 12,000 new CEC applications.  However, it still intends to admit approximately 15,000 individuals (whose cases are currently being processed) as permanent residents under the CEC during 2014.

Sub-Caps for Certain Occupations

As of November 9, 2013, CIC will impose sub-caps of 200 applications each for National Occupational Classification (“NOC”) Level Skill Level B (usually requiring college education or apprenticeship training) occupations.  NOC Skill Level 0 (management-level) and Skill Level A (usually requiring university education) occupations will not be subject to occupational sub-caps, but they will be subject to the total annual cap of 12,000 applications.

Eliminated Occupations

As of November 9, 2013, the following six occupations will no longer be eligible under the CEC:

a)      Cooks (NOC code 6322);

b)      Food service supervisors (NOC 6311);

c)       Administrative officers (NOC 1221);

d)      Administrative assistants (NOC 1241);

e)      Accounting technicians and bookkeepers (NOC 1311); and

f)       Retail sales supervisors (NOC 6211).

CIC claims that it already has a large inventory of applications in these occupations and will continue processing them to a final decision.

“Up Front” Assessment of Language Ability

CIC will maintain the same language criteria for CEC applicants but, as of November 9, 2013, it will now assess language ability during its initial review of the application. The current language requirements are Canadian Language Benchmark (“CLB”) 7 for NOC Skill Level 0 and Skill Level A occupations, and CLB 5 for NOC Skill Level B occupations.  Applicants who do not have the required language proficiency will have their applications returned to them along with the processing fee.